Filed 10/1/14 O’Dell v. California Capital Ins. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
PATRICK S. O’DELL,
Plaintiff and Appellant,
v.
CALIFORNIA CAPITAL INSURANCE,
Defendant and Respondent.
A138500
(Humboldt County
Super. Ct. No. DR110683)
Appellant Patrick S. O’Dell (O’Dell) contends the trial court erred by granting summary judgment in favor of respondent, California Capital Insurance Company (California Capital), on the ground that coverage under a homeowner’s insurance policy for the theft of firearms was subject to a specified limit of $5,000. O’Dell argues that the limit should not be applied because his firearms were antique. We will affirm.
I. FACTS AND PROCEDURAL HISTORY
A. The Insurance Policy
California Capital insured O’Dell under homeowner’s policy number 4 HOC 1 1036104, effective March 31, 2010, to March 31, 2011. The policy covered O’Dell’s real and personal property against certain perils, including theft, under specified terms and conditions. On the declarations page, the “Basic Coverage Limits and Premium” statement showed a coverage limit of $560,547 for dwelling loss and $392,384 for unscheduled personal property loss.
Section 1 of the policy, entitled “PROPERTY COVERAGES,” set forth the coverage with respect to “COVERAGE C – Personal Property.” The Coverage C provisions contained a “Special Limits of Liability” clause applicable to money, precious metals, jewelry, and other items including “firearms.” As amended by an endorsement, the clause read: “Special Limits of Liability. These limits do not increase the Coverage C limit of liability. The special limit for each numbered category below is the total limit for each loss for all property in that category. [¶] . . . [¶] . . . $5,000 for loss by theft of firearms.” (Italics added.)
An endorsement entitled “Personal Property Replacement Cost” provided that, for an additional premium, covered losses to personal property would be settled at replacement cost (rather than actual cash value), except that certain types of personal property, including “[a]ntiques . . . [and] . . . articles of rarity or antiquity which cannot be replaced,” would be settled at fair market value. This endorsement specified that all other provisions of the policy still applied.
B. The Loss of O’Dell’s Firearms
O’Dell’s residence was burglarized in late August or early September 2010, during the effective period of the policy. According to the caretaker who discovered the burglary, the culprits used a sledge hammer to break through a door leading from the garage into the residence, a locked interior door hidden behind a sliding bookcase, and a locked door to a “gun vault” in the basement. The burglar alarm was not working.
O’Dell claimed that the burglars absconded with, among other items, numerous firearms from his collection, including handguns and rifles. Some were manufactured before 1900, while others were of more recent vintage.
C. O’Dell’s Insurance Claim and California Capital’s Response
O’Dell submitted a claim to California Capital on September 7, 2010. California Capital requested permission to inspect the premises and asked O’Dell to provide an inventory of the stolen items and documentation supporting the loss. It also advised that the policy limit for the theft of firearms was $5,000.
After several reminders from California Capital, O’Dell permitted an inspection about four months later in January 2011. In June 2011, O’Dell’s lawyer submitted an inventory of the items claimed under the policy, which included 31 “[a]ntique” firearms valued at over $170,000. O’Dell also sought recovery of costs he incurred to retrieve six of the stolen firearms from gun shops in Oregon.
On July 20, 2011, California Capital paid O’Dell $5,000 as the aggregate policy limit for the stolen firearm loss. O’Dell’s lawyer advised California Capital that he disagreed with the claims decision on this point, arguing that the stolen firearms were “antique firearms” not subject to the policy limits for theft of firearms. California Capital responded that the limit applied, since an antique firearm is still a “firearm” within the common meaning and dictionary definition of the term.
D. O’Dell’s Complaint
O’Dell filed a lawsuit against California Capital in August 2011, asserting causes of action for breach of contract and declaratory relief. O’Dell alleged that the 31 firearms identified in his insurance claim were not “firearms” as the term is used in the policy, because he did not acquire or use them as firearms. Instead, they were “antiques” as defined by the “United States Gun Control Act of 1968.” (See 18 U.S.C. § 921 et seq.; hereafter Gun Control Act of 1968.)
O’Dell’s second amended complaint, filed in April 2012, alleged that 23 additional firearms had been stolen during the burglary, and increased the value of the stolen firearms to more than $500,000.
E. Summary Judgment
California Capital filed a motion for summary judgment or, in the alternative, summary adjudication, contending it did not breach the insurance contract because it had paid all policy benefits owed, including the $5,000 for theft of the firearms. According to California Capital, there was no dispute that the subject items stolen from O’Dell were firearms, and the unambiguous and plain meaning of the policy limited recovery for theft of all firearms to $5,000 regardless of their age, condition, or any other factor. Accompanying the motion was a separate statement of undisputed facts and supporting evidence, which set forth the events we have summarized ante.
In opposition to the motion, O’Dell contended his firearms were antique firearms that did not fall within the policy’s limit for theft of firearms. He further maintained that language from state and federal gun control statutes must be incorporated into the policy, and the federal Gun Control Act of 1968 defined an “antique firearm” as, among other things, a firearm manufactured before 1899. In support of his opposition, O’Dell presented his deposition testimony that he acquired the antique firearms beginning in the late 1980’s as investments, he was not a hunter and “do[es] not shoot,” and he considered an antique firearm to be one that was “made prior to 1900” (or 1898) under the Gun Control Act of 1968, which he “Googled” a week or two before his deposition. Except as to the characterization of the stolen items as “guns” or “antiques,” O’Dell did not assert the existence of a disputed fact material to this appeal.
After a hearing, the court granted summary judgment by written order of March 22, 2013. The court explained: “The plain language of the insurance policy limiting benefits for theft of firearms is not ambiguous. The policy contract language states: ‘. . . Property Coverages, Coverage C – Personal Property, Special Limits of Liability . . . $5,000 for loss by theft of firearms.’ (Exh. 1, p. 54.) This language is clear, and the words are to be read in their plain and ordinary sense. [Citation.] A common sense reading of the word ‘firearms’ in the special limits of liability covers the firearms the plaintiff lost by theft. [¶] It is undisputed that [California Capital] has paid [O’Dell] the full $5,000 policy limit for the loss of firearms by theft. This is the only coverage issue in this case. Because no further benefits are due for stolen firearms beyond what has already been paid, [California Capital] has met its burden of showing there are no triable issues of material fact and that it is entitled to judgment as a matter of law.”
Judgment was entered, and this appeal followed.
II. DISCUSSION
A. Applicable Legal Principles
1. Summary Judgment
In reviewing the grant of summary judgment, we conduct an independent review to determine whether there is a triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.)
A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue. (Ibid.)
In the matter before us, the sole dispute was the meaning of the insurance policy: in particular, whether the special $5,000 limit on coverage for theft of firearms applied to the theft of O’Dell’s firearms, which he asserted to be antiques.
2. Interpretation of Insurance Policies
The interpretation of an insurance policy is a question of law for the court. (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 18.) To discern the parties’ intent at the time of contracting, we look first to the policy language, according the language its “plain meaning” in its “ordinary and popular sense,” in the context of the policy as a whole and the circumstances of the case. (Ibid.; Civ. Code, §§ 1636, 1639, 1641, 1644.)
If the policy language is clear and explicit, the language controls. (Civ. Code, § 1638; Foster-Gardner, Inc. v. National Union Fire Ins. Co. (1998) 18 Cal.4th 857, 868.) Thus, where a policy is unambiguous, the expectations of the insured are irrelevant. (See Montrose Chemical Corp. v. Admiral Ins. Co. (1995) 10 Cal.4th 645, 666-667.)
On the other hand, a policy provision is ambiguous if it is subject to two or more reasonable constructions. In the insurance context, we generally resolve ambiguities in favor of coverage to protect the objectively reasonable expectations of the insured. (Civ. Code, §§ 1649, 1654; Montrose Chemical Corp. v. Admiral Ins. Co., supra, 10 Cal.4th at p. 667; Castro v. Fireman’s Fund American Life Ins. Co. (1988) 206 Cal.App.3d 1114, 1118-1119 (Castro).)
We will review the trial court’s ruling de novo. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142 [de novo review applied to order granting summary judgment]; County of San Diego v. Ace Property & Casualty Ins. Co. (2005) 37 Cal.4th 406, 414 [de novo review applied to interpretation of insurance policy].)
B. Summary Judgment Was Properly Granted
Under the heading, “Special Limits of Liability,” the policy stated that the “special limit for each numbered category below is the total limit for each loss for all property in that category.” Category 7 read: “$5,000 for loss by theft of firearms.” This provision, including the word “firearms,” is clear, explicit, and unambiguous: all firearms stolen in a single loss will be covered only up to the aggregate sum of $5,000.
The common meaning of “firearm” is a weapon capable of discharging a bullet or other projectile. Dictionary references include the following definitions: “a weapon from which a shot is discharged by gunpowder—usually used of small arms” (Webster’s 11th Collegiate Dict. (2004) p. 471); “a small arms weapon, as a rifle or a pistol, from which a projectile is fired by gunpowder” (Dictionary.com
Although O’Dell alleged in his complaint that his firearms were “antiques” and “investments” he never fired or intended to fire, the policy limited coverage for theft of “firearms” without any condition as to their age, purpose, or use. The reasonable reading of the term “firearms,” therefore, is that it included firearms that are antique firearms and those that are nonantique firearms, as well as firearms that are held solely for investment and those that are not. (See McKee v. State Farm Fire & Cas. Co. (1983) 145 Cal.App.3d 772, 775-777 [insured’s pre 1965 silver minted coin collection, acquired as an investment, was nonetheless “money” within the meaning of the policy limit for loss caused by “theft of money, bullion, numismatic property and bank notes,” notwithstanding the use to which insured put it].) Indeed, O’Dell does not dispute that the relevant stolen items were in fact firearms; as he acknowledges in his opening brief, an “antique firearm is both an antique and a firearm.” (Italics added.)
Nonetheless, O’Dell contends the policy’s limitation on coverage for theft of firearms is ambiguous for a variety of other reasons. As we discuss next, none of his arguments has merit.
1. Policy as a Whole
O’Dell primarily contends that, even though the $5,000 limit on “firearms” is itself plainly stated, the policy as a whole is ambiguous with respect to the theft of antique firearms because the policy also insures antiques from loss by theft, and there is no special limit for antiques. (Civ. Code, § 1641 [contract must be construed as a whole]; Waller v. Truck Ins. Exchange, Inc., supra, 11 Cal.4th at p. 18.) Therefore, O’Dell argues, the policy is subject to two reasonable interpretations when antique firearms are stolen: the $5,000 limit applies; or the $5,000 limit does not apply, and loss is paid up to the total $392,384 limit for unscheduled personal property.
We disagree. Under Section 1, Coverage C, the policy covers unscheduled personal property, which would include firearms and antiques up to $392,384. Loss by theft of firearms, however, is limited to $5,000. The loss in this case was by theft, and the items stolen from O’Dell were firearms. There is no ambiguity: the $5,000 limit applies.
O’Dell next points out that the policy does not contain a definition of “firearm.” But the mere absence of a policy definition does not render contract language ambiguous, at least where the average layperson would understand the meaning of the term. (State of California v. Continental Ins. Co. (2012) 55 Cal.4th 186, 195; Bay Cities Paving & Grading, Inc. v. Lawyers’ Mutual Ins. Co. (1993) 5 Cal.4th 854, 866; Castro, supra, 206 Cal.App.3d at p. 1120.) Here, the average layperson would understand “firearms” to mean “firearms,” including all types and ages.
O’Dell urges that antique firearms are “well known” to be distinct from other firearms, and the fact that the $5,000 special limits clause refers only to “firearms” and not to “antique firearms” suggests antique firearms are not subject to the limit. As we discuss post, however, the record does not indicate any “well known” difference between firearms and antique firearms germane to coverage under the policy. Of course, antique firearms are older than firearms that are not antiques, but O’Dell does not identify any reason that the policy would place a special coverage limit on modern firearms but not on old firearms; to the contrary, O’Dell acknowledges that antique firearms are still firearms. And because “firearms” includes antique firearms, there was no reason for the special limits clause to refer both to “firearms” and to the subset of firearms that might be described as “antique firearms.” (See Bay Cities Paving & Grading, Inc. v. Lawyers’ Mutual Ins. Co., supra, 5 Cal.4th at p. 868 [“a word with a broad meaning or multiple meanings may be used for that very reason—its breadth—to achieve a broad purpose”].)
2. Rules of Contract Interpretation
O’Dell next turns to rules of contract interpretation that have no application to the matter at hand. He argues that the $5,000 limit should be construed narrowly against California Capital as the insurer. (Citing E.M.M.I. Inc. v. Zurich American Ins. Co. (2004) 32 Cal.4th 465, 471 [policy exclusions are strictly construed].) However, the rule that policy provisions are construed against the insurer applies only in the event of ambiguity, which we do not find here. (E.g., Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1264-1265.) In any event, narrowly construing the $5,000 limit, we conclude it applies to the theft of O’Dell’s firearms.
O’Dell also asserts that the policy language must be interpreted in the sense the promisor (insurer) believed the promisee (insured) understood it at the time of formation. (Civ. Code, § 1649.) He opines that a layperson who acquires antique firearms would reasonably expect that a single antique firearm would typically exceed a value of $5,000, his insurer would recognize the “legal and well known distinctions between antique firearms and other firearms,” and the policy would clearly warn him if the insurer intended to limit loss of antique firearms to $5,000.
Again, O’Dell’s argument is misplaced. Consideration of the reasonable expectations of the insured is a tool for resolving ambiguity; it does not apply where, as here, the policy language is unambiguous. (Montrose Chemical Corp. v. Admiral Ins. Co., supra, 10 Cal.4th at pp. 666-667.) Furthermore, accepting arguendo that an insured would reasonably expect that a policy would clearly warn him if it limited loss of an antique firearm to $5,000, we conclude the policy in this case did just that.
3. Statutory Definition of Antique Firearms in Gun Control Statutes
O’Dell points out that the term “antique firearms” is defined by federal and California gun control statutes. Section 921(a)(16) of Title 18 of the United States Code reads: “The term ‘antique firearm’ means — [¶] (A) any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system) manufactured in or before 1898; or [¶] (B) any replica of any firearm described in subparagraph (A) if such replica [¶] (i) is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition, or [¶] (ii) uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade; or [¶] (C) any muzzle loading rifle, muzzle loading shotgun, or muzzle loading pistol, which is designed to use black powder, or a black powder substitute, and which cannot use fixed ammunition. For purposes of this subparagraph, the term ‘antique firearm’ shall not include any weapon which incorporates a firearm frame or receiver, any firearm which is converted into a muzzle loading weapon, or any muzzle loading weapon which can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock, or any combination thereof.” In California, Penal Code section 16170 defines “antique firearm” in a similar manner for the purpose of specified California statutes.
These statutory definitions do not help O’Dell. In the first place, the definitions of “antique firearms” are irrelevant to an interpretation of the policy in this case, since the policy does not include the term “antique firearms.” Moreover, the statutory definitions actually hurt O’Dell’s argument in this appeal because, by defining an “antique firearm” as a type of “firearm,” they confirm that antique firearms are a subset of the broader term “firearms,” such that a general reference to “firearms” would be expected to include antique firearms as well.
O’Dell next argues that other provisions of the gun control statutes draw a distinction between an antique firearm and other firearms. For example, section 921(a)(3) of Title 18 of the United States Code provides: “The term firearm [in this chapter] means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by action of an explosive. . . . Such term does not include an antique firearm.” (Italics added.) Penal Code section 16520, subdivision (d) provides that a “ ‘firearm’ does not include an unloaded antique firearm” for purposes of specified statutes. To the extent O’Dell’s firearms fall within these statutory definitions of antique firearms, they would not be regulated by the gun control statutes. (See United States v. One Assortment of 349 Firearms (S.D.Fla. 1978) 461 F.Supp. 208, 209-210 [antique firearms not subject to forfeiture under 18 U.S.C. § 924(d), because definition of “antique firearms” in 18 U.S.C. § 921(a)(16) prevailed over definition of “firearms” in 18 U.S.C. § 921(a)(3)].)
O’Dell contends that, because these gun control statutes were in effect during the term of the policy, their distinctions between firearms and antique firearms are relevant to interpreting the word “firearm” in the policy and should be considered implied terms of the policy. (Citing Modglin v. State Farm Mut. Automobile Ins. Co. (1969) 273 Cal.App.2d 693, 698 [insurance policy is governed by relevant statutory law in effect when the policy is issued; the statutory provisions are read into the policy and become part of the contract].) Further, O’Dell argues, the distinctions in the gun control statutes should be considered because they constitute “circumstances under which [the policy] was made.” (Civ. Code, § 1647.) And, he urges, it is reasonable to presume the statutory distinctions between antique firearms and other firearms were known to insurers and gun owners because of certain federal publications.
O’Dell’s arguments are unavailing for several reasons. First, the distinction between firearms and antique firearms in the gun control statutes is not relevant, in light of the gun control statutes’ specific and discrete purpose. These statutes do not purport to establish a general or global distinction between antique firearms and firearms. Instead, they expressly provide that the distinction is made for the purpose of applying specific criminal and regulatory laws. (18 U.S.C. § 921(a) [“As used in this chapter . . .”]; Pen. Code, § 16520, subd. (d) [specifying applicable statutes].) The federal gun control statutes, for example, pertain to the unlawful transport, transfer, and possession of various dangerous weapons and accessories. (18 U.S.C. § 922; see Huddleston v. United States (1974) 415 U.S. 814, 824.) The statutes therefore distinguish antique from nonantique firearms to effect a legislative decision to impose the regulations and criminal penalties only as to firearms that are not antiques; they do not proclaim that antique firearms are not “firearms” for any other purpose. Applying their statutory definitions here would thus be inappropriate. (E.g., Bluehawk v. Continental Ins. Co. (1996) 50 Cal.App.4th 1126, 1131-1132 [error to apply statutory definition of “resident” in Gov. Code, § 244 to determine that insured’s son was resident of her household even though he lived elsewhere, since “resident” was not ambiguous and, in any event, the statute was irrelevant because it concerned political rights]; Mirpad, LLC v. California Ins. Guarantee Assn. (2005) 132 Cal.App.4th 1058, 1073-1074 [error to graft definition of “person” in Ins. Code, § 19 onto comprehensive general liability policy, since that statute was intended to govern the construction and interpretation of the Insurance Code; a policy term should not be given a technical meaning unless it is clear from the policy that it was intended].)
Second, if we did use the language of the gun control statutes to interpret the policy, the statutes would actually confirm that the reasonable meaning of the word “firearm” includes antique firearms. The fact that the state and federal legislatures found it necessary to specify that antique firearms were not being regulated reflects the general expectation that the term “firearms” includes antique firearms; and without an express exception, it would be assumed that antique firearms were being regulated since they are, in fact, firearms. In the homeowner’s policy at issue here, there is no express exception for antique firearms in the special limit for theft of firearms. Accordingly, the reasonable interpretation of the special $5,000 limit clause is that it applies to all firearms, including O’Dell’s allegedly antique firearms.
Third, even if we applied the statutory distinction between antique firearms and other firearms to interpret the policy, we would uphold the summary judgment against O’Dell for yet another reason: he presented no admissible evidence in the trial court that his stolen firearms were, in fact, “antique firearms” under the definition set forth in the gun control statutes. O’Dell’s opposition to the summary judgment motion did not include any evidence of the type of loading system or firing mechanism used by the stolen firearms, or whether ammunition for those firearms is still available. (See 18 U.S.C. § 921(a)(16).) Although the approximate manufacture date of the firearms was included in a list attached to the second amended complaint, O’Dell did not establish any foundation for this evidence in opposition to the summary judgment motion.
4. Castro
O’Dell relies most heavily on the decision in Castro, supra, 206 Cal.App.3d 1114. There, a life insurance policy had excluded coverage if the insured died “ ‘as a result of flying as a pilot or crew member of any aircraft . . . .’ ” The insured, who had not yet qualified for a student pilot certificate, was taking a flight lesson when his aircraft crashed and he died in the pilot’s seat. (Id. at pp. 1116-1117.) The trial court issued a directed verdict for the insurer, concluding that the term “pilot” referred broadly to someone handling or qualified to handle an aircraft’s controls. (Id. at pp. 1117-1118.) The appellate court reversed, finding the term ambiguous: on the one hand, “pilot” could include a “student pilot”; on the other hand, it might not include a student pilot, since a student pilot is neither qualified nor licensed to perform the same tasks as a certified pilot. (Id. at p. 1121.) The court ruled that this ambiguity should be resolved against the insurer, and the directed verdict in the insurer’s favor was erroneous. (Id. at p. 1122.)
Castro is readily distinguishable from the matter at hand. Although O’Dell contends Castro “read into the policy . . . the licensing statutes bearing on pilots,” Castro did not actually cite to any statute, but to the undisputed fact that the insured had not acquired his student pilot certificate or requisite medical certificate. (Castro, supra, 206 Cal.App.3d at p. 1121.) Moreover, the court in Castro found that the insured might not be considered a pilot because he had never become a pilot; here, by contrast, an antique firearm was and is a firearm, even if certain statutes immunize it from gun control regulation. Nothing in Castro suggests there is any ambiguity in the policy’s special $5,000 limit with respect to the theft of firearms.
In sum, the policy language limiting benefits due for loss by theft of firearms is clear and explicit, and the trial court correctly held that the language unambiguously applies to O’Dell’s theft loss claim. Because it is undisputed that California Capital paid O’Dell the total aggregate limit of $5,000 for the theft of the firearms, there is no triable issue of material fact as to the adequacy of California Capital’s performance under the insurance contract. Summary judgment was proper.
III. DISPOSITION
The judgment is affirmed.
NEEDHAM, J.
We concur.
SIMONS, Acting P. J.
BRUINIERS, J.
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