Continental Cas. Co. v. Weaver

• Citation: 48 Wn.App. 607,739 P.2d 1192
• Decision Date: 27 July 1987
• Docket Number: No. 18907-7-I,18907-7-I
• Parties: CONTINENTAL CASUALTY CO., Respondent, v. Welton WEAVER and the marital community of Welton Weaver and Jane Doe Weaver; and Carol Christianson, Defendants. Kathy DAHLMAN and Carole Dahlman co-executors of the Estate of Roger E. Dahlman; and Estate of Roger E. Dahlman, Appellants, v. UNITED PACIFIC/RELIANCE INSURANCE CO., a foreign corporation; and Avis, Inc., a foreign corporation, Respondents.
• Court: Court of Appeals of Washington

Page 607

48 Wn.App. 607

739 P.2d 1192

CONTINENTAL CASUALTY CO., Respondent, v. Welton WEAVER and the marital community of Welton Weaver and Jane Doe Weaver; and Carol Christianson, Defendants.

Kathy DAHLMAN and Carole Dahlman co-executors of the Estate

of Roger E. Dahlman; and Estate of Roger E.

Dahlman, Appellants, v. UNITED PACIFIC/RELIANCE INSURANCE CO., a foreign

corporation; and Avis, Inc., a foreign

corporation, Respondents.

No. 18907-7-I.

Court of Appeals of Washington,

Division 1.

July 27, 1987.

Daniel W. Unti, Carney, Stephenson, Badley Smith, Mueller & Spellman, Seattle, for Kathy and Carole Dahlman co-executors of Roger E. Dahlman.

Craig L. McIvor, Lee, Smart, Cook, Martin & Patterson, Seattle, for Continental Cas. Co.

James M. Beecher, Hackett, Beecher & Hart, Seattle, for United Pacific/Reliance Ins.

RINGOLD, Judge.

Following commencement of a wrongful death action against Welton Weaver, Continental Casualty Co. (Continental) instituted this declaratory action. ¹ The court granted a summary judgment order that Weaver was not among those persons permitted to drive a car under a rental agreement and that neither Avis nor Continental was obliged to defend or indemnify Weaver for the resultant damages. The Dahlmans appeal, claiming: (1) the driver is a member of the lessee's immediate family and is covered under the rental agreement; (2) denial of insurance coverage to an unlicensed driver is contrary to public policy and law; and (3) a permissive user of the car is covered under the rental agreement. We conclude that the trial court properly dismissed the claim.

The facts are not in dispute. The deceased, Roger Dahlman, was struck and killed by an automobile driven by Welton Weaver. Weaver was driving the car of his nonmarital companion, Carol Christianson, who had rented the car from Avis, Inc. At the time of the accident, Weaver's driver's license was suspended. The rental contract between Avis and Christianson specified who, other than the lessee, could drive the car:

Who else may drive the car. Only someone in my immediate family who permanently lives with me, a regular fellow employee incidental to business duties, or someone who appears at the time of rental and signs this agreement may drive the car but only with my prior permission. In any case, the other driver must be at least 25 years old and must be a capable and licensed driver.

(Emphasis in original.) The contract also provided that liability insurance coverage would be provided to the lessee and others permitted by the agreement to use the car:

Liability insurance. Anyone permitted by this agreement to drive the car will be protected against liability for causing bodily injury, death or property damage up to limits of coverage of $100,000 for each person ... Such coverage will be provided by ... [Avis] according to the terms of a standard automobile liability insurance policy. If permitted by law ... [Avis] can provide coverage under a certificate of self-insurance together with or instead of a policy from an insurance company ...

(Emphasis in original.) In keeping with this provision, Avis obtained both a certificate of self-insurance and insurance coverage from its insurer, Continental Casualty Co. (Continental).

IS WEAVER ENTITLED TO COVERAGE UNDER THE POLICY?

Immediate family. The Dahlmans contend Weaver is a permanent member of the lessee's (Christianson's) immediate family. As such, Weaver is a permitted user of the rental car and therefore qualified for Avis' blanket insurance coverage. Continental contends, and the trial court agreed, that Weaver is not a permanent member of Christianson's immediate family as he is not related to her by blood or marriage. The Dahlmans maintain that the trial court erred in failing to find that the term "immediate family" is ambiguous, and that Weaver and Christianson constituted an "immediate family". They had a 4-year relationship, holding themselves out to others as a married couple, shared all expenses associated with the joint maintenance of their home, maintained a joint bank account and were supported by Weaver as Christianson worked only part-time.

In construing the language of a contract, if two reasonable and fair interpretations are possible, an ambiguity exists. State Farm Ins. Co. v. Emerson, 102 Wash.2d 477, 484, 687 P.2d 1139 (1984); McDonald Ind. v. Rollins Leasing, 95 Wash.2d 909, 631 P.2d 947 (1981). Ambiguities need not be interpreted the same when they are used to extend coverage rather than to except coverage due to the rule of strict construction against the insurer. "It is fundamental that ambiguities in the policy must be construed against the insurer and in favor of the insured. This rule applies with added force in the case of exceptions and limitations to the policy's coverage." McDonald, at 913, 631 P.2d 947 (quoting Witherspoon v. St. Paul Fire & Marine Ins. Co., 86 Wash.2d 641, 650, 548 P.2d 302 (1976)). Clear and unambiguous language, however, is not to be modified under the guise of construing the policy. Britton v. Safeco Ins. Co., 104 Wash.2d 518, 707 P.2d 125 (1985).

An insurance contract should be interpreted according to the way it would be understood by the average insurance purchaser. Emerson, 102 Wash.2d at 480, 687 P.2d 1139. "The terms of an insurance policy must be understood in their plain, ordinary and popular sense." Federated American Ins. Co. v. Strong, 102 Wash.2d 665, 670, 689 P.2d 68 (1984).

The Dahlmans rely on Fisher v. Hodge, 162 Conn. 363, 294 A.2d 577, 80 A.L.R.3d 1164 (1972), contending that the term "immediate family" is ambiguous. In construing an automobile liability policy, the Connecticut court held that since the term was subject to varying interpretations, it should be construed against the leasing corporation that drew up the rental agreement and found that the brother of the lessee was not contractually prohibited from using the car. The court viewed with favor the trial court's reliance on Webster's Dictionary's definition of family as "a group of common ancestry" (as opposed to "a group of persons living under one roof"), but noted that the use of the word "immediate" is problematic when family is defined as blood relatives or common ancestry as that excludes spouses from family membership. Alternatively, the court found that a Connecticut omnibus statute imposed liability under the circumstances because the brother used the car with the lessee's permission.

Our Supreme Court has construed the terms "household" and "family" and noted that "family" "conveys the notion of some relationship--blood or otherwise" and stated that "[i]n its most common use, the word implies father, mother and children--immediate blood relatives; but the word is also used to designate many other and extended relationships." Collins v. Northwest Casualty Co., 180 Wash. 347, 352, 39 P.2d 986, 97 A.L.R. 1235 (1935).

No case has been found in which the Washington courts have construed the term "immediate family" in insurance contracts. In construing "immediate family" in the context of the tort of outrage, this court recently held that boys raised by the deceased who were neither adopted nor actually his stepchildren were not proper parties to maintain a suit as they did not come within the definition. The court stated If we were to define the class of people who may bring this action to include the ... [boys], we would include within the definition of immediate family members not only spouses, children, stepchildren, parents and siblings, but also individuals who are like spouses, children, stepchildren, parents or siblings. Such an interpretation would be so ambiguous as to limit the class of plaintiffs who could assert a claim ... only by the imagination of counsel drafting the pleadings.

(Emphasis in original.) Strickland v. Deaconess Hospital, 47 Wash.App. 262, 269-70, 735 P.2d 74 (1987).

No case has been cited nor have we found any case in which two unrelated persons cohabitating in a nonmarital relationship have been held to be members of an immediate family. See generally, 93 A.L.R.3d 420, § 12. No ambiguity exists as to the common meaning of the term "immediate family." The trial court's finding was correct.

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