Dobosh v. Rocky Mountain Fire & Casualty Co.

717 P.2d 793, 43 Wash. App. 467
CourtCourt of Appeals of Washington
DecidedApril 15, 1986
Docket7402-8-II
StatusPublished
Cited by15 cases

This text of 717 P.2d 793 (Dobosh v. Rocky Mountain Fire & Casualty Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dobosh v. Rocky Mountain Fire & Casualty Co., 717 P.2d 793, 43 Wash. App. 467 (Wash. Ct. App. 1986).

Opinions

Reed, J.

Rocky Mountain Fire and Casualty Co. appeals a summary judgment in favor of the respondents, Steven Dobosh and Safeco Insurance Company of America. The trial court held that Rocky Mountain's automobile insurance policy provides underinsured motorist coverage (UIM) to guest passengers in Dobosh's vehicle. We reverse.

On May 9, 1981, a 2-car accident occurred involving an automobile driven by Steven Dobosh. Dobosh and the four passengers in his vehicle were injured. One passenger was Dobosh's daughter, Tiffany; the other three were "guest passengers", unrelated to Dobosh. The driver of the other car was underinsured.

Safeco insured two of Dobosh's guest passengers and its policy included underinsured motorist coverage. Rocky Mountain insured Dobosh and its policy also included UIM coverage but the company denied such coverage to Dobosh's guest passengers, contending that its policy unambiguously excludes guest passengers from UIM coverage.

[469]*469Dobosh and the passengers in his automobile brought an action for declaratory judgment against Rocky Mountain and Safeco. The plaintiffs asked the trial court to rule that Rocky Mountain's policy included guest passengers in its UIM provision and to rule on the primary and secondary responsibilities of the respective insurance companies. Safeco cross-claimed against Rocky Mountain, alleging that Rocky Mountain's UIM coverage was primary and covered all the passengers in Dobosh's vehicle. Dobosh and Safeco moved successfully for summary judgment.

Rocky Mountain's underinsured motorist endorsement provides coverage for "the insured", defined to mean "each person covered as an insured under the bodily injury liability protection of the policy to which this endorsement is attached." Reference to the definition section of the policy is necessary to determine who is covered under the liability section of the policy (there is no "bodily injury liability" section as such). The "Insured" is there defined as "the person(s) or group(s) protected under the policy coverage.” "Covered person" is defined as "anyone using your covered auto with your permission." (Italics boldfaced in original.) Rocky Mountain argued before the trial court and argues before us now that "using" means more than merely occupying a vehicle, that it refers to exercising control over the vehicle, and that therefore a mere passenger is not "using" the insured vehicle for purposes of UIM coverage.

The trial court rejected the argument that UIM coverage that excludes guest passengers is contrary to public policy, but it held that Rocky Mountain's UIM coverage includes guest passengers, because they would be "using" the insured automobile.

The first issue presented, the extent of Rocky Mountain's UIM coverage, centers on the meaning of the word "using" as it appears in the context of the policy. Insurance policies are to be construed as contracts, and interpretation is a matter of law. State Farm Gen. Ins. Co. v. Emerson, 102 Wn.2d 477, 480, 687 P.2d 1139 (1984). In construing the language of an insurance contract, the entire [470]*470contract is to be construed together for the purpose of giving force and effect to each clause. Neer v. Fireman's Fund Am. Life Ins. Co., 103 Wn.2d 316, 320, 692 P.2d 830 (1985). A court cannot modify clear and unambiguous language of an insurance contract under the theory of construing it. Britton v. Safeco Ins. Co. of Am., 104 Wn.2d 518, 707 P.2d 125 (1985).

In our view, when the policy is considered as a whole, the term "using" under the liability section is not ambiguous and it does not encompass merely occupying a vehicle as a passenger. Although the term "using" is, by itself, broad and imprecise, it is much less so when viewed in the context of the insurance contract in question. Because a passenger who is merely occupying a covered automobile will not be subject to liability for the act of being a passenger, that passenger would not be "using" the automobile for the purposes of liability coverage. A contrary conclusion would be unreasonable. An insurance policy should not be given a "strained or forced construction which would lead to an . . . absurd conclusion, or render the policy nonsensical . . ." Morgan v. Prudential Ins. Co. of Am., 86 Wn.2d 432, 434-35, 545 P.2d 1193 (1976).

Because it is reasonable to conclude that a passenger would not, under the terms of the policy, be subject to liability simply because he or she is a passenger, it is reasonable to conclude that a passenger is not covered by the UIM endorsement. As stated in the policy, one is insured under the UIM endorsement if one is insured under the liability section of the policy. UIM coverage is coextensive with liability coverage.

The conclusion that a passenger is not "using" the vehicle as that term is used in the policy is reinforced by the distinctions elsewhere in the policy between "using" and "occupying." In the Personal Injury Protection (PIP) endorsement, the distinction is twice made between "occupying the insured automobile as a guest passenger" and "using the insured automobile with the permission of the named insured." These distinctions indicate clearly that a [471]*471guest passenger is not "using" the covered automobile. Although consideration of the language in the PIP endorsement may entail a "complicated reading" of the policy as Dobosh alleges, we are not concerned here with an exclusion from coverage already extended, which would require more conspicuous placement. The distinctions here, contained within the four corners of the policy, are merely evidence of the meaning attributed to certain terms by the insurer. It is appropriate for us to consider such distinctions because our interpretation of the contract requires harmonizing and giving effect to all its parts. See Neer, 103 Wn.2d at 320; United States Fire Ins. Co. v. Roberts & Schaefer Co., 37 Wn. App. 683, 683 P.2d 600 (1984).

The only reasonable interpretation of the term "using", in the context of the policy as a whole, is one that excludes being a passenger. A contrary interpretation would render the liability section nonsensical because one does not incur liability to others by the act of being a passenger. Guest passengers are, consequently, not within Rocky Mountain's UIM coverage.

Where policy language is unambiguous, the court will give effect to that language unless it is contrary to public policy. Progressive Cas. Ins. Co. v. Jester, 102 Wn.2d 78, 80, 683 P.2d 180 (1984); Dairyland Ins. Co. v. Uhls, 41 Wn. App. 49, 52, 702 P.2d 1214 (1985). The starting point for our consideration of public policy is the statute itself. RCW 48.22.030

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Dobosh v. Rocky Mountain Fire & Casualty Co.
717 P.2d 793 (Court of Appeals of Washington, 1986)

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Bluebook (online)
717 P.2d 793, 43 Wash. App. 467, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dobosh-v-rocky-mountain-fire-casualty-co-washctapp-1986.