Smith v. Continental Cas. Co.

904 P.2d 749
CourtWashington Supreme Court
DecidedNovember 2, 1995
Docket62349-0
StatusPublished
Cited by26 cases

This text of 904 P.2d 749 (Smith v. Continental Cas. Co.) 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
Smith v. Continental Cas. Co., 904 P.2d 749 (Wash. 1995).

Opinion

904 P.2d 749 (1995)
128 Wash.2d 73

Roger Lee SMITH and, Rosemarie Smith, Husband and Wife, Respondents,
v.
CONTINENTAL CASUALTY COMPANY, a Corporation, Defendant and
West American Insurance Company, a Corporation, Petitioner.

No. 62349-0.

Supreme Court of Washington, En Banc.

November 2, 1995.

*750 Keller, Rohrback, Irene M. Hecht, Seattle, for petitioner.

Campbell, Dille & Barnett, Hollis H. Barnett, Puyallup, for respondents.

SMITH, Justice.

Petitioner West American Insurance Company seeks review of a decision of the Court of Appeals, Division Two, which reversed a summary judgment in its favor by the Pierce County Superior Court based upon the trial court's conclusion that Respondent Roger Lee Smith was not entitled to coverage under a policy with an underinsured motorist coverage endorsement issued by Petitioner to Respondent's employer. We reverse.

QUESTION PRESENTED

The question presented in this case is whether an endorsement in an insurance policy which added the lessor of a vehicle as an "additional insured (lessor)" provided underinsured motorist coverage to the lessor, an employee of the lessee, while operating another vehicle not designated for coverage under the policy.

STATEMENT OF FACTS

Respondent Roger Lee Smith is the sole proprietor of Big Rig Repair & Leasing (Big Rig), which leased its 1978 GMC tow truck to Respondent's father, Claude Smith, for use in his business, Smitty's Fleet Service. His father then hired Respondent to operate the tow truck.

Petitioner West American Insurance Company issued a garage policy to "Claude Smith, d/b/a Smitty's Fleet Service," which included $1 million in underinsured motorist (UIM) coverage. Claude Smith obtained additional insurance from West American when he leased the tow truck from his son. It was added to his schedule of "covered autos."[1] An endorsement was issued, effective May 15, 1990, for "Additional Insured-Lessor," which designated Big Rig Repair & Leasing as an "Additional Insured (Lessor)," and the 1978 GMC tow truck as a "leased auto."[2] It provided that:

Any "leased auto" designated or described in the Schedule or in the Declarations will be considered a covered "auto" you own and not a covered "auto" you hire or borrow. for [sic] a covered "auto" that is a "leased auto" WHO IS AN INSURED is changed to include as an "insured" the lessor named in the Schedule or in the Declarations.[[3]]

Another endorsement, for "Hired Autos Specified as Covered Autos You Own," states that:

The following is added to WHO IS AN INSURED:

While any covered "auto" described in the Schedule or in the Declarations is rented or leased to you and is being used by or for you, its owner or anyone else from whom you rent or lease it is an "insured" but only for that covered "auto."[[4]]

As an employee of Smitty's Fleet Service, Respondent Roger Lee Smith on May 26, 1990 drove the 1978 GMC tow truck on a call to pull a farmer's truck from a muddy field. After Respondent completed the task, one of the farmer's employees, Phil Hill, asked him for his personal assistance in driving Mr. Hill's van from a nearby location. Leaving *751 the tow truck, Respondent accompanied Mr. Hill to his van and, following Mr. Hill, who was driving another vehicle, began driving the van back to the farm.

While Respondent Smith was driving the van, an approaching automobile crossed the center line and struck the van head-on, seriously injuring Respondent. The driver of the other vehicle was killed. That driver did not have liability insurance.

Respondent Smith was insured under his own name with Continental Casualty Company, which provided $500,000.00 in underinsured motorist coverage. He brought suit against Continental and West American to compel arbitration.[5] West American answered and filed a counterclaim seeking declaratory judgment that its policy did not cover Respondent.

Respondent and West American filed cross motions for summary judgment. On January 6, 1992, the Pierce County Superior Court, the Honorable Waldo F. Stone, granted summary judgment in favor of West American. On September 6, 1994, the Court of Appeals, Division Two, reversed that ruling in an unpublished opinion, granting summary judgment to Respondent and awarding him attorney fees. We granted review on February 8, 1995.

DISCUSSION

Petitioner West American contends the Court of Appeals erred in reversing the summary judgment granted by the trial court in its favor. It claims Respondent Roger Lee Smith was not covered for this accident under the underinsured motorist provisions of the policy it issued to Claude Smith, doing business as Smitty's Fleet Service, because at the time of the accident Respondent was not driving the 1978 GMC tow truck designated as the "leased auto" under the policy endorsement.

A motion for summary judgment may be granted if the trial court finds there is no genuine issue as to a material fact. The moving party is then entitled to judgment as a matter of law.[6] The reviewing court stands in the position of the trial court and reviews questions of law de novo.[7]

Interpretation of an insurance policy involves a question of law.[8] The policy should be sensibly construed as it would be understood by the average person.[9] Undefined terms are given their plain, ordinary and popular meanings.[10] Any ambiguities remaining after consideration of extrinsic evidence are resolved in favor of the insured.[11]

WHO IS AN INSURED

The Court of Appeals concluded that, although Respondent Smith was driving a vehicle not designated in the endorsement, he was entitled to underinsured motorist coverage under the policy issued to Claude Smith and Smitty's Fleet Service by West American. For its conclusion, the Court of Appeals relied upon the UIM provision "which implies that the insured's bodily injury must simply be caused by an `accident' involving the underinsured driver's vehicle but not necessarily the insured's vehicle."[12] The court properly noted that underinsured motorist coverage is provided the named insured without regard to the particular vehicle the "insured" occupies at the time of an accident.[13]

The named insured under the West American policy is Claude Smith, doing business as *752 Smitty's Fleet Service, and not Respondent Roger Lee Smith.[14] The West American policy defines an "insured" under the endorsement for underinsured motorist coverage:

B. WHO IS AN INSURED

1. You.
2. If you are an individual, any "family member."

3. Anyone else "occupying" a covered "auto" or a temporary substitute for a covered "auto". The covered "auto" must be out of service because of its breakdown, repair, servicing, loss or destruction.

4. Anyone for damages he or she is entitled to recover because of "bodily injury" sustained by another "insured".[[15]]

Respondent does not qualify under subsections (1) or (2) because he is not the named insured nor a "family member" as that term is defined in the policy.[16] Subsections (3) and (4) are not applicable under the facts of this case. The declarations page of the policy identifies "covered autos" for purposes of the underinsured motorist coverage by reference to symbol number 22, which refers to "owned autos only."

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Bluebook (online)
904 P.2d 749, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-continental-cas-co-wash-1995.