Roller v. Stonewall Insurance Co.

780 P.2d 278, 55 Wash. App. 758
CourtCourt of Appeals of Washington
DecidedOctober 19, 1989
Docket11386-4-II
StatusPublished
Cited by8 cases

This text of 780 P.2d 278 (Roller v. Stonewall Insurance 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
Roller v. Stonewall Insurance Co., 780 P.2d 278, 55 Wash. App. 758 (Wash. Ct. App. 1989).

Opinions

Petrich, J.

Daniel Roller appeals from a summary judgment denying him underinsured motorist (UIM) coverage for injuries he sustained due to the intentional acts of an uninsured driver. We reverse.

There are two issues on appeal: (1) whether a passenger is a user and thus an insured under the underinsured motorist coverage of the driver's liability policy at the time of the initial collision and later when the passenger left the car, immediately after impact, to examine the damage and to transcribe the license of the offending vehicle; and (2) whether coverage is precluded under the underinsured motorist endorsement of the insurance policy when the injuries sustained by the insured were due to the intentional acts of the uninsured motorist.

On December 17, 1985, Daniel Roller was a passenger in a motor vehicle driven by Ernest Flattum. Roller and Flat-turn were transporting Roller's daughter to the home of a babysitter in Tacoma. The home of the babysitter was next door to Roller's ex-wife, Dinell McKay.

Roller delivered his daughter to the babysitter and returned to Flattum's vehicle. At the same time, McKay was getting into her parked vehicle and was apparently [760]*760agitated at Roller. McKay drove her vehicle into Flattum's vehicle and the rear bumpers of the two vehicles became locked.

Roller got out of the car and went to tell the babysitter to call the police. In the meantime, McKay was attempting to free the bumpers by accelerating her vehicle. Roller stood to the left front of the vehicle and began to record the license number of McKay's vehicle. McKay freed her car, ran into Roller, and carried him on the car for a short distance. Roller sustained injuries as a result of the two collisions.

Neither McKay nor Roller had insurance policies. Flat-turn carried an insurance policy with Stonewall Insurance Company which provided for underinsured motorist coverage. Roller filed a claim under Flattum's insurance policy for the injuries he sustained during the first collision, while he was inside Flattum's vehicle, and for the injuries he sustained during the second collision, when he was recording McKay's license number. Stonewall Insurance Company denied coverage.

Roller filed an action seeking a declaration that he is entitled to coverage under Flattum's insurance policy. On cross motions for summary judgment the court declared that Roller was not entitled to coverage because he was not an insured under the policy and, furthermore, that the intentional acts of the uninsured driver, McKay, precluded coverage.

In reviewing the trial court's decision, this court must engage in the same inquiry as the trial court. Wendle v. Farrow, 102 Wn.2d 380, 383, 686 P.2d 480 (1984). A summary judgment may not be granted unless there is no genuine issue as to any material fact. Wendle v. Farrow, supra. Here, however, there is no dispute about the facts, and whether there is coverage depends on the language of the insurance policy. The interpretation of insurance policy language is a question of law. Sears v. Grange Ins. Ass'n, 111 Wn.2d 636, 638, 762 P.2d 1141 (1988).

[761]*761Stonewall Insurance Company argues that Roller is not an "insured" under the terms of the policy and is, therefore, not entitled to coverage for his injuries. The insurance policy contains two definitions of an "insured". Under the liability section, "insured" is defined, in part, as any person "using” your insured car. Under the UIM provision of the policy, "insured" is defined, in part, as any other person "occupying” your insured car. "Occupying" is defined in the definitions section as: in, on, getting into or out of.

Once it is determined that a person is insured under the liability section of the policy that person is entitled to be considered as an insured under the UIM endorsement of the policy. Kowal v. Grange Ins. Ass'n, 110 Wn.2d 239, 245, 751 P.2d 306 (1988). To the extent that a UIM provision narrows the definition of "insured" as defined in the liability section, it is invalid. Federated Am. Ins. Co. v. Raynes, 88 Wn.2d 439, 443, 563 P.2d 815 (1977); Rau v. Liberty Mut. Ins. Co., 21 Wn. App. 326, 329, 585 P.2d 157 (1978). Here, "using" is broader than "occupying". Therefore, the broader definition appearing in the liability section should be used in determining if Roller was "insured".

There term "using” is not defined in the insurance policy. A recent Washington Supreme Court case used four relevant criteria to determine whether a person is using a vehicle and, thus, whether the person is insured under a UIM endorsement. Sears v. Grange Ins. Ass'n, 111 Wn.2d at 638. The four criteria are: (1) there must be a causal relation or connection between the injury and the use of the insured vehicle; (2) the person asserting coverage must be in a reasonably close physical proximity to the insured vehicle, although the person need not be actually touching it; (3) the person must be vehicle oriented rather than highway or sidewalk oriented at the time; and (4) the person must also be engaged in a transaction essential to the use of the vehicle at the time. Sears v. Grange Ins. Ass'n, 111 Wn.2d at 641.

Here, Roller was obviously using the vehicle when he was sitting in the passenger seat during the first collision. [762]*762Our Supreme Court has already held that the term "using" in an insurance policy includes passive use by a passenger. Sears v. Grange Ins. Ass'n, 111 Wn.2d at 641.

We next examine whether the four criteria set out in Sears v. Grange Ins. Ass'n, supra, were met when Roller was hit during the second impact. First, Roller was transcribing the license number of the car that offended the insured vehicle at the time he was injured. Therefore, there was a causal connection between the injury and the use of the insured vehicle. Second, Roller was within 10 to 30 feet from the insured vehicle and was, therefore, in close physical proximity to the insured vehicle. Third, Roller was vehicle oriented rather than highway or sidewalk oriented. He had left the vehicle for a limited purpose and was not too far away from it. Fourth, Roller was engaged in a transaction essential to the use of the insured vehicle. It was essential that someone call the police and that the license plate number be reported to the police.

In Rau v. Liberty Mut. Ins. Co., supra, the court found that all the criteria were met even though the truck driver was away from his truck. The truck driver left his truck and crossed four lanes of traffic on foot to ask directions from another truck driver. An uninsured motorist hit the insured truck driver as he was returning to his truck, which was 20 feet away. The court in Rau held that the truck driver was "using" the insured truck at the time he was injured and was therefore covered by the uninsured motorist endorsement of the truck policy. Rau, 21 Wn. App. at 334-35.

Similarly, in the factual context of this case, we hold that the four criteria set out in Sears were met.

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Roller v. Stonewall Insurance Co.
780 P.2d 278 (Court of Appeals of Washington, 1989)

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Bluebook (online)
780 P.2d 278, 55 Wash. App. 758, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roller-v-stonewall-insurance-co-washctapp-1989.