American Universal Ins. Co. v. Ranson

• Decision Date: 19 April 1962
• Docket Number: No. 36162,36162
• Citation: 59 Wn.2d 811,370 P.2d 867
• Court: Washington Supreme Court
• Parties: AMERICAN UNIVERSAL INSURANCE COMPANY, Appellant, v. Mildred RANSON, Respondent.

Page 811

59 Wn.2d 811

370 P.2d 867

AMERICAN UNIVERSAL INSURANCE COMPANY, Appellant, v. Mildred RANSON, Respondent.

No. 36162.

Supreme Court of Washington, Department 1.

April 19, 1962.

Brethorst, Fowler, Bateman, Reed & McClure, J. Edwin Thonn, Seattle, for appellant.

Gordon, Goodwin, Sager & Thomas, Tacoma, for respondent.

WEAVER, Judge.

Plaintiff insurance company appeals from a summary judgment against it.

September 28, 1959, defendant's husband was struck and killed by an automobile driven by Charles W. Thompson, a minor soldier stationed at Fort Lewis, who was driving a borrowed automobile.

On this date, defendant and her husband were insured by policy No. ACF85798 issued by plaintiff. The insurance contract included an 'uninsured motorist' endorsement that provided:

'I. Damages for Bodily Injury Caused by Uninsured Automobiles: To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury,' sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for the purposes of this endorsement, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration, * * *';

and defined an 'uninsured automobile' as:

'* * * (1) an automobile with respect to the ownership, maintenance or use of which there is no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such automobile; * * *'

It appears that this type of insurance coverage is of recent origin. It is intended to provide financial recompense to innocent persons who are injured and to dependents of those who are killed because of the wrongful conduct of uninsured motorists. ¹

July 19, 1960, plaintiff insurance company commenced this action against the insured defendant and the American Arbitration Association, alleging: (a) that insured defendant had presented plaintiff a claim under the provisions of her policy, quoted supra; (b) that plaintiff rejected the claim on the ground it had reason to believe Charles W. Thompson (who caused the accident)

'* * * was an additional insured under an automobile liability insurance policy issued to his father, Laran [sic.] Thompson, by the State Farm Insurance Company * * *';

and (c) and, on request, defendant American Arbitration Association had initiated arbitration proceedings.

The complaint prayed that both defendants be enjoined from proceeding with the arbitration. See Application of Phoenix Assurance Company of New York, 9 A.D.2d 998, 194 N.Y.S.2d 770 (1959).

July 19, 1960 (the same day the complaint was filed), the trial court issued an order directing defendants to show cause why they should not be enjoined from proceeding with arbitration during pendency of this action.

The record does not disclose the disposition of the order to show cause; however, August 10, 1960, plaintiff filed an amended complaint eliminating the American Arbitration Association as a party. The amended complaint, in the nature of an action for declaratory judgment, alleges that the benefit of the 'uninsured motorist' provision does not insure to defendant until she has established that Charles W. Thompson was uninsured at the time of the accident. Plaintiff prayed that the court adjudge it under no obligation to defendant until she 'brings herself within the terms' of the policy; and that defendant be restrained from arbitration.

October 17, 1960, defendant filed a general denial. This general denial is confusing. By using it, defendant denies allegations necessary to sustain any claim she may have under her policy of insurance.

The principal issue presented by the pleadings is whether Charles W. Thompson was an insured or an uninsured motorist at the time of the accident. Fundamentally, this is a two-pronged question: the first of fact--was there in existence at the time of the accident a policy of liability insurance issued to the father of Charles W. Thompson that purported to extend coverage to Charles W. Thompson; the second of law (assuming such a policy exists)--do the facts and circumstances of Charles W. Thompson's status at the time of the accident support a conclusion that he was covered by the policy?

March 16, 1961, defendant moved for a summary judgment adjudging '* * * Charles W. Thompson * * * was at the time of the accident on September 29 [sic--28], an uninsured motorist * * *'

April 10, 1961, the court entered a 'Pre Trial Order' granting defendant's motion and adjudging

'* * * that Charles W. Thompson was at the time of the collision herein an uninsured motorist within the terms of the endorsement to the insurance contract of the plaintiff policy number ACF 85798, referred to in plaintiff's amended complaint; provided however that the plaintiff shall have until April 17, 1961 to supply, furnish and file documentary proof of the existence of the policy of insurance claimed by the plaintiff covering persons injured by Charles W. Thompson in the operation of the automobile in question on September 29 [sic--28], 1959.'

The record does not disclose when plaintiff filed the affidavit of John H. Hamblin, to which we will refer later. It is dated April 6, 1961, prior to the 'Pre Trial Order,' but was received by counsel for defendant on April 17, 1961, subsequent to the 'Pre Trial Order.'

It is from the summary judgment, dated April 24, 1961 (granted on defendant's motion of March 16, 1961), that this appeal is prosecuted. The judgment recites that the court

'* * * examined the pleadings and evidence presented, including the affidavit of John H. Hamblin and the certified copies of interrogatories and answers to interrogatories from Pierce County Cause Number 145247 [not this action].'

The judgment further determines

'* * * that Charles W. Thompson was at the time of the collision herein an uninsured motorist within the terms of the endorsement to the insurance contract of the plaintiff, policy number ACF 85798 [issued to defendant], * * *' (Italics ours.)

and dismisses plaintiff's amended complaint...