DeSimone

Notwithstanding what we thought was settled over a decade ago in Vanguard Ins. Co. v. Schabatka (1975) 46 Cal.App.3d 887 [ 120 Cal.Rptr. 614 ], defendants here have appealed from a judgment in a declaratory relief action which restricted the policy exposure of Westfield Insurance Company (plaintiff) to the “per person” limit of $100,000 rather than the “per occurence” limit of $300,000. The individual defendants are the surviviors and heirs of Leonardo DeSimone who died as a result of injuries inflicted out of their presence by plaintiff’s insured in a multivehicle collision. The issue, as it was in Vanguard, is whether the heirs are entitled to recover on an alleged, nonderivative cause of action, in addition to the estate’s entitlement to recover for the wrongful death. There is nothing new here, but apparently it needs to be said again.

Factual and Procedural Background

According to the stipulated facts, Leonardo DeSimone (the decedent) died as a result of injuries sustained when Kenneth Gulley’s (Gulley’s) Toyota Célica collided with the decedent’s Cadillac Eldorado while it was legally parked on the shoulder of Interstate 15 south of Corona. At the time of the…