25 P.3d 451 (Wash.App. Div. 2 2001), 24387-3, Matthews v. Penn-America Ins. Co.

Docket Nº24387-3-II.
Citation25 P.3d 451, 106 Wn.App. 745
Opinion JudgeARMSTRONG,
Party NameBlake Curtis MATTHEWS, Appellant, v. PENN-AMERICA INSURANCE COMPANY, Respondent.
AttorneyStephen Thomas Carmick, Chehalis, for Appellant., Charles C. Huber, Lane Powell Spears Lubersky, Seattle, for Respondent.
Case DateJune 15, 2001
CourtCourt of Appeals of Washington

Page 451

25 P.3d 451 (Wash.App. Div. 2 2001)

106 Wn.App. 745

Blake Curtis MATTHEWS, Appellant,

v.

PENN-AMERICA INSURANCE COMPANY, Respondent.

No. 24387-3-II.

Court of Appeals of Washington, Division 2.

June 15, 2001.

Page 452

[106 Wn.App. 746] Stephen Thomas Carmick, Chehalis, for Appellant.

Charles C. Huber, Lane Powell Spears Lubersky, Seattle, for Respondent.

ARMSTRONG, C.J.

Twenty-four-year-old Blake Curtis Matthews was seriously injured in an auto accident in August 1994. At the time, he was living in his mother' home; Ray Edinger, the mother's boyfriend, also lived in the home. Edinger had an auto insurance policy with Penn-America, which included as an insured a "member of the family who is a resident of the household." The question is whether Matthews was a member of Edinger's family, entitled to underinsured motorist coverage under Edinger's policy. The trial court granted summary judgment for Penn-America and Matthews appeals. We affirm, holding that the average purchaser of insurance would not consider Matthews to be a member of Edinger's family.

FACTS

Blake Matthews' biological parents have been divorced for years. In 1989, Edinger started living with Sue and Blake in Tenino. Shortly thereafter, Sue, Edinger and Blake [106 Wn.App. 747] moved to a home Sue purchased in Olympia. Edinger has continued to live with Sue since then but the two have not married and Edinger has not adopted Blake.

Until 1993, Blake lived in the Olympia residence "except for the occasional night he would spend somewhere else." CP at 20. Edinger recalled that Blake was "in an apartment in Centralia for a period of time" and also "in Olympia with his girlfriend." CP at 129. In December 1993, Blake co-signed a lease on an apartment with his girlfriend and they moved in together along with their son. In the rental application, Blake listed Sue as his parent and listed Edinger, with Sue's Olympia address, as his current landlord. Blake took most of his belongings and his room became a "catch all room for storage." CP at 157, 159. Three or four months Before the accident, Blake broke up with his girlfriend and returned to his mother's house. 1

At the time of the auto accident, Edinger's Penn-America auto insurance policy provided underinsured motorist coverage for the person named in the policy. That person is described as follows: "You, your, yourself means the person named on the Declarations page and includes the spouse if a resident of the same household. This also means a member of the family who is a resident of the household and includes a ward or foster child." CP at 30.

In November 1997, Matthews sued Penn-America, claiming that he was an "insured under the terms of [Edinger's] policy for purposes of the uninsured motorist coverage provided." CP at 1.

ANALYSIS

The interpretation of language in an insurance contract is a question of law. Rones v. Safeco Ins. Co., 119 Wash.2d 650, 654, 835 P.2d 1036 (1992);

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Grange Ins. Co. v. Brosseau, 113 Wash.2d 91, 95, 776 P.2d 123 (1989). Where the language in a contract for [106 Wn.App. 748] insurance is clear and unambiguous, the court should enforce the policy as written. Allstate Ins. Co. v. Peasley, 131 Wash.2d 420, 424, 932 P.2d 1244 (1997).

A term or phrase is ambiguous only if the language on its face would be fairly susceptible to two different but reasonable interpretations by an average insurance purchaser. Peasley, 131 Wash.2d at 424, 932 P.2d 1244. If an ambiguity is found, it is construed against the insurer. Peasley, 131 Wash.2d at 424, 932 P.2d 1244; see also State Farm Mut. Auto. Ins. Co. v. Ruiz, 134 Wash.2d 713, 718, 952 P.2d 157 (1998) (construing inclusionary clauses liberally in favor of coverage if the person can reasonably be embraced within the terms of the clause). Blake contends that the word "family" is ambiguous and should be construed broadly in his favor to afford coverage.

Neither the term "family" nor the phrase "member of the family" is defined in the policy. Generally, undefined terms are given their plain, ordinary, and popular meaning as would be understood by an average purchaser of insurance. Peasley, 131 Wash.2d at 424, 932 P.2d 1244. When words in a policy are undefined, courts look to the dictionary to determine the words' common meaning. Peasley, 131 Wash.2d at 425-26, 932 P.2d 1244. The meanings of "family" range from "a group of persons connected by blood, by affinity, or by law" 2 to "a group of people who live, sleep, cook, and eat upon the premises as a single housekeeping unit." 3 The question is whether the average purchaser of insurance would reasonably read Penn-America's language to intend coverage for the traditional group connected by blood, affinity or law, or for the more broadly defined group of people who live ... upon the same premises. If "family" is construed broadly, Blake would be covered because he, his mother, and Edinger lived together under the same roof for most of the five years [106 Wn.App. 749] Before his 1994 accident. But if "family" is read in the more limited traditional sense, Blake would not be covered because he was not related by blood, affinity, or law to Edinger. We conclude that, in the context of Penn-America's policy, the average purchaser would read "family" in the traditional, "connected by blood, affinity, or by law." Thus, Blake was not covered as a family member.

First, the Supreme Court has said that although the word "family" can be used synonymously with the broader term "household," the most common use of "family" "convey[s] the notion of some relationship--blood or otherwise," noting that "[i]n its most common use, the word implies father, mother and children--immediate blood relatives[.]" Collins v. Northwest Cas. Co., 180 Wash. 347, 352, 39 P.2d 986, 97 A.L.R. 1235 (1935). Although this does not foreclose further analysis of the meaning of "family," the most common use is, by definition, the meaning an average insurance purchaser is most likely to consider.

Second, if "family" means all those who live under one roof, Penn-America's requirements that an insured be both a family member and a resident merge. Blake would be a family member because he lives with Edinger. And he would be a resident of the same household because he lives with Edinger. Thus, simple residency would establish coverage and "family" and "resident" would merge; the word "family" would have no independent meaning. But we construe the language of an insurance policy to give meaning to all the words of the policy if possible. Boeing Co. v. Aetna Cas. & Surety Co., 113 Wash.2d 869, 876, 784 P.2d 507 (1990). This we can do only by assigning some meaning to "family" beyond residency. In short, "family" must further qualify the definition of "insured" beyond the qualification imposed by residency.

Third, Penn-America tells the policyholder that a spouse is insured if a resident of the same household, and that a ward or foster child is included in the definition of "family." But if "family" is defined broadly to include

Page 454

Edinger's girlfriend, it surely would include a spouse and the language [106 Wn.App. 750] specifically extending coverage to a spouse would be unnecessary. And if "family" includes the adult son of Edinger's girlfriend, it surely would include a ward or foster child. Thus, these specific references would be unnecessary. The words would simply repeat those persons already included in the broad definition of "family." But then the words "ward" and "foster child" are meaningless. On the other hand, "spouse," "ward," and "foster child" do have meaning if "family" is limited to those connected by blood, affinity, or law. The words then mark the outer boundary of "family." They tell the insured that a spouse, although not connected by blood, is covered as part of "you, your, and yourself;" further, that wards and foster children, although not connected by blood, are included in family because they are connected by law to the named insured. Thus, the specific references to spouse, ward, or foster child strongly point to the traditional family definition--those connected by blood or law.

Moreover, these references bring the word "family" very close to, if not identical to, the phrase "immediate family," which has been held to exclude a meretricious partner. Continental Cas. Co. v. Weaver, 48 Wash.App. 607, 612, 739 P.2d 1192 (1987). And if the word excludes a meretricious partner, it surely excludes the adult son of a meretricious partner.

We conclude that the definition of "family" in Penn America's policy includes only those persons related to the policyholder by blood, affinity, or law. Blake Matthews, who is unrelated to Edinger by either blood or law, is not included.

We address briefly the reasoning of the dissent. The dissent agrees that in construing "family" we must consider the context in which it is used. But the dissent then states that context includes "the meanings that society attributed to the word at the place and time of its use." This, of course, simply opens the dictionary to every possible meaning of "family." And, with dictionary in hand, it is easy for the dissent to conclude that "family" has a variety of reasonable [106 Wn.App. 751] meanings and that Penn America's "family," construed in favor of coverage, is broad enough to include the adult son of the insured's girlfriend.

The flaw in this argument is the misuse of "context." If "context" means all the possible dictionary definitions, it is meaningless. To be meaningful, context must refer to the context of Penn-America's policy. Thus, we consider all appropriate dictionary meanings of "family" and then look to the words and phrases surrounding "family" in Penn-America's policy to guide us to the meaning of...

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