Continental Ins. Co. v. Paccar, Inc.

634 P.2d 291, 96 Wash. 2d 160, 1981 Wash. LEXIS 1224
CourtWashington Supreme Court
DecidedOctober 1, 1981
Docket47400-1
StatusPublished
Cited by24 cases

This text of 634 P.2d 291 (Continental Ins. Co. v. Paccar, Inc.) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Continental Ins. Co. v. Paccar, Inc., 634 P.2d 291, 96 Wash. 2d 160, 1981 Wash. LEXIS 1224 (Wash. 1981).

Opinions

Williams, J.

In this case an insured seeks review of a

Court of Appeals decision holding that an "annual retained aggregate" liability in an insurance policy should not have been prorated when the insurer cancelled the policy before expiration of the annual period. Continental Ins. Co. v. Paccar, Inc., 26 Wn. App. 850, 614 P.2d 675 (1980). We reverse.

In 1974, respondent Continental Insurance Company (Continental) issued Paccar, Inc. (Paccar), the petitioner, an insurance policy that commenced March 1, 1974, and that was effective "until cancelled." Under the policy, Paccar received $1 million in coverage per claim and $1 million in coverage in the aggregate for seven major areas of potential liability. Continental's liability was limited, how[162]*162ever, by a self-retained limit (deductible) of $50,000 per claim and $500,000 in the aggregate (the "annual retained aggregate limit"). By its terms, the aggregate feature would only come into play after the insured had paid out $500,000 on 10 or more occurrences. Paccar's reason for seeking inclusion of an annual aggregate feature was apparently to protect against an unusually high number of losses, since Paccar contemplated that it could self-insure up to 10 occurrences at $50,000 per occurrence.

The policy provided for proration of premiums in the event of cancellation before the March 1 anniversary date, as required by RCW 48.18.290(4). However, the policy did not specify whether the annual retained aggregate limit was to be prorated in the event of cancellation before the anniversary date.

At all times during the events that gave rise to this litigation, Paccar maintained its own insurance department, but some of Paccar's insurance arrangements were handled through the brokerage firm of Marsh & McLennan, Inc. (Marsh). Marsh also acted as designated agent for Continental on the policy in question.

In the fall of 1975, the parties began discussing policy changes. In August of 1975, Marsh, apparently acting on behalf of Paccar, had notified Continental that it wished to have inserted in the policy a clause providing for proration of the annual retained aggregate if Continental elected to cancel the coverage before the anniversary date of the policy. Continental declined to agree to insertion of such a clause, explaining:

We, here at Continental, believe that we would never take advantage of an insured because of policy terminology in the event in this case that we would be near reaching an aggregate because of losses.

Exhibit 31.

By March 1, 1976, both parties remained dissatisfied with the policy. Continental found the stated premiums unsatisfactory, while Paccar continued to seek an express provision relating to the proration of the annual retained [163]*163aggregate. The parties agreed to extend the coverage on a month-to-month basis, however, while they negotiated. Eventually it became clear that no resolution was in sight, and on April 30, 1976, Continental sent out notices of cancellation pursuant to the policy, cancelling the policy effective July 29, 1976.

A year later, Continental brought the present action seeking additional premium amounts from Paccar on the theory that the policy premium, which was based on annual sales, had been improperly computed. Paccar denied any further liability and counterclaimed on the theory that the annual retained aggregate should have been prorated. As to Paccar's counterclaim, the trial court found that the cancellation of the policy had created an ambiguity as to the effect of the annual self-retained aggregate limit and concluded that the ambiguity should be resolved against Continental by prorating the aggregate limit.

On appeal, Continental failed to prevail on its claim for additional premiums, and it has not sought review of the Court of Appeals decision on this issue. Paccar's petition addresses that portion of the Court of Appeals decision denying proration of the annual retained aggregate. Continental Ins. Co. v. Paccar, Inc., supra.

Although Paccar raises several subissues, the fundamental question is whether there should be proration when it was not expressly provided for in the original insurance policy. In concrete terms, the question is whether the deductible for the period March 1, 1976 to July 29, 1976 is $500,000 or $205,000.

Continental argues that the policy is unambiguous, that proration of premiums is expressly provided for, that pro-ration of the aggregate is not provided for, and that this court should not write in a proration clause to protect Paccar from its own failure to obtain such a clause. This argument was persuasive to the Court of Appeals. The court reasoned that cancellation did not affect a claim that had already arisen under the policy's coverage. The court defined '"coverage"' as the "'assumption of risk of occur[164]*164rence of the event insured against before its occurrence.'" Continental Ins. Co., at 863, quoting from Ryan v. Cuna Mut. Ins. Soc'y, 84 Wn.2d 612, 615, 529 P.2d 7 (1974). Thus, the court concluded that Paccar "was afforded full 'coverage' at any one time up to the maximum policy limits, subject to the fulfillment of the self-retained aggregate limit." Continental Ins. Co., at 864. The court found no ambiguity, and likewise agreed with Continental that pro-ration of premiums was the sole remedy in the event of cancellation.

Paccar contends, however, that the court erred by failing to discern the difference between a patent and a latent ambiguity and by failing to recognize that the policy is latently ambiguous. In Maxwell v. Maxwell, 12 Wn.2d 589, 597-98, 123 P.2d 335 (1942), this court recognized that while a patent ambiguity must exist on the face of the document, a latent ambiguity exists when the language becomes doubtful only in light of proof of extrinsic or collateral circumstances. Paccar argues that cancellation of the policy in the middle of a coverage year provides just such a circumstance. See also 3A C.J.S. Ambiguity 410 (1973); 30 Am. Jur. 2d Evidence § 1073 (1967).

We think Paccar is correct in maintaining that a contract which is clear on its face is not necessarily unambiguous when extrinsic circumstances are considered. Maxwell v. Maxwell, supra. In this case, for example, the policy language was clear, and its interpretation unambiguous so long as the policy either remained in effect or was cancelled effective on an anniversary date. Once the extrinsic circumstance of cancellation during a coverage year occurred, however, an ambiguity became apparent: namely, which party should bear the risk revealed by early cancellation of the annual aggregate feature of the contract.

In answering this question, we think it helpful to understand the nature of the annual retained aggregate. The concept of time, specifically an annual period, was essential to the aggregate feature in this policy. The insured sought protection from a large loss on a single occurrence by [165]*165securing coverage for a loss above $50,000 on any one occurrence.

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Continental Ins. Co. v. Paccar, Inc.
634 P.2d 291 (Washington Supreme Court, 1981)

Cite This Page — Counsel Stack

Bluebook (online)
634 P.2d 291, 96 Wash. 2d 160, 1981 Wash. LEXIS 1224, Counsel Stack Legal Research, https://law.counselstack.com/opinion/continental-ins-co-v-paccar-inc-wash-1981.