Ray

Plaintiff" James Ray (Ray) appeals from the judgment following a jury’s general verdict for defendant Farmers Insurance Exchange (Farmers) on Ray’s breach of contract and related actions. 1 Ray asserts prejudicial instructional error and insufficiency of the evidence to support the verdict. The linchpin in Ray’s case is Farmers’s alleged obligation, under the terms of an automobile collision insurance policy, to compensate Ray, after repair of his wrecked car, for the car’s diminution in market value because of its status as a wrecked car. We shall affirm the judgment.

Facts

On October 25, 1979, a United Parcel Service (UPS) truck collided with Ray’s 1978 Sapporo, which was parked in front of Ray’s home. Ray had purchased the car about 10 months earlier, and it had a little over 8,000 miles on it at the time of the collision. The car was covered against loss by a collision insurance policy with Farmers.

Ray had the car towed to Vandenberg Motors for repair. He then phoned his insurance agent, Kevin Finn, to report the collision. Ray wanted a new *1414 car. Without denying coverage, Finn suggested that, because UPS’s liability appeared clear, Ray might have the claim…

I dissent. The majority’s conclusion that diminution in market value of a repaired automobile by reason of its status as a wrecked car is not recoverable under the collision policy at issue herein, is, in my view, a windfall for the insurer, Farmers. The majority’s holding excused it from considering and determining whether the trial court prejudicially erred in instructing the jury on and submitting for the jury’s determination the legal issue of whether the contract obligated the insurer to pay its insured for loss of market value. I have considered the issue, tendered by appellant, find submitting this legal issue to the jury to be erroneous, the instructions to be improper and the error prejudicial. I would reverse the judgment.

*1419 I

The interpretation of the policy is a question of law. (Evid. Code, § 301, subd. (a).) Initially, it is the trial court’s function to determine what the policy means and to instruct the jury accordingly. It is error to leave the interpretation to the jury. (Ibid.; Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865 [ 44 Cal.Rptr. 767 , 402 P.2d 839 ]; California Shoppers, Inc. v. Royal Globe Ins. Co. (1985) 175 Cal.App.3d…

EVANS, Acting P.J.

Plaintiff James Ray (Ray) appeals from the judgment following a jury's general verdict for defendant Farmers Insurance Exchange (Farmers) on Ray's breach of contract and related actions. [1] Ray asserts prejudicial instructional error and insufficiency of the evidence to support the verdict. The linchpin in Ray's case is Farmers's alleged obligation, under the terms of an automobile collision insurance policy, to compensate Ray, after repair of his wrecked car, for the car's diminution in market value because of its status as a wrecked car. We shall affirm the judgment.

On October 25, 1979, a United Parcel Service (UPS) truck collided with Ray's 1978 Sapporo, which was parked in front of Ray's home. Ray had purchased the car about 10 months earlier, and it had a little over 8,000 miles on it at the time of the collision. The car was covered against loss by a collision insurance policy with Farmers.

Ray had the car towed to Vandenberg Motors for repair. He then phoned his insurance agent, Kevin Finn, to report the collision. Ray wanted a new car. Without denying coverage, Finn suggested that, because UPS's liability appeared clear, Ray might have the…