Unpublished Disposition, 908 F.2d 978 (9th Cir. 1990)

No. 89-15797.

United States Court of Appeals, Ninth Circuit.

Before TANG and NOONAN, Circuit Judges, and LAUGHLIN E. WATERS,^* District Judge.

MEMORANDUM^** 

Clifford Vardell ("Vardell") appeals the district court's judgment following a bench trial, in favor of State Farm Mutual Automobile Insurance Company ("State Farm"). We affirm.

DISCUSSION

Vardell contends that the "spatial relationship" created when Walter Womack ("Womack") parked his truck in front of William Emery's ("Emery") truck constituted a use by Emery of the Womack vehicle. Vardell further contends that although Emery used Womack's truck, Vardell did not. Therefore, Vardell contends that he is covered by Womack's State Farm policy for bodily injury.

The district court found that there was no "use" of the Womack vehicle at the time of the accident. The witnesses were not unanimous as to whether the battery cables were connected between the two trucks. Two witnesses testified that the cables were connected; the other two witnesses, including Vardell, testified that they did not know. It was not clear error for the district court to determine that the cables were not connected.

For insurance purposes, California courts define the term "use" broadly. State Farm Mutual Auto Ins. Co. v. Partridge, 109 Cal. Rptr. 811, 816-17 (Cal.S. Ct. 1973). To extend the term "use" to Vardell's situation, however, would be to transfer liability to Womack, an innocent and inactive entity in the accident. See Camay Drilling Co. v. Travelers Indemnity Co., 90 Cal. Rptr. 710, 712 (Cal.App.1970) (court reluctant to extend the "use" concept where it results in a transfer of "liability from the negligent entity to the insurer for the innocent entity"). At the time of the accident, the men reparing the vehicle had focused on jumping the solenoid, and the battery cables were not in use. Thus, Emery was not using Womack's truck at the time of the accident.

We agree with the district court's reasoning that if Emery was using the Womack truck, then Vardell was also using the Womack truck. The exclusionary clause of the State Farm Policy excludes any person who, with the permission of the owner, is using the vehicle.

Vardell accurately states the general rule that coverage clauses are interpreted broadly whereas exclusionary clauses are interpreted narrowly. Partridge, 109 Cal. Rptr. at 816. We will not, however, interpret "use" of a vehicle in an exclusionary clause any differently than we interpret "use" of a vehicle in a coverage clause of the same policy. See Mori v. Southern Gen. Ins. Co., 241 Cal. Rptr. 463, 464-66 (Cal.App.1987) (court refused to interpret the term "injury" in the coverage clause differently from the same term in the exclusionary clause). Thus, even if it were determined that Emery was using Womack's truck at the time of the accident, Vardell would also qualify as an additional insured under Womack's policy and would be denied coverage for his injuries.

AFFIRMED.