Beckman By and Through Beckman v. Connolly

• Decision Date: 25 July 1995
• Docket Number: No. 17364-6-II,17364-6-II
• Citation: 79 Wn.App. 265,898 P.2d 357
• Court: Washington Court of Appeals
• Parties: Francine BECKMAN, By and Through Alfred L. BECKMAN, her guardian ad litem, Appellant, v. Donald R.L. CONNOLLY and "Jane Doe" Connolly, husband and wife; D & L Cedar Products as sole proprietorship owned by Donald R.L. Connolly and "Jane Doe" Connolly, husband and wife; Liberty Northwest Insurance Company, a foreign insurance company doing business in Washington; and Farmers Insurance Group, a foreign insurance company, doing business in the State of Washington, Respondents.

Page 265

79 Wn.App. 265

898 P.2d 357

Francine BECKMAN, By and Through Alfred L. BECKMAN, her guardian ad litem, Appellant, v. Donald R.L. CONNOLLY and "Jane Doe" Connolly, husband and wife; D & L Cedar Products as sole proprietorship owned by Donald R.L. Connolly and "Jane Doe" Connolly, husband and wife; Liberty Northwest Insurance Company, a foreign insurance company doing business in Washington; and Farmers Insurance Group, a foreign insurance company, doing business in the State of Washington, Respondents.

No. 17364-6-II.

Court of Appeals of Washington Division 2.

July 25, 1995.

John Arthur Miller, Miller & Dart Ps Inc., Fircrest, for appellant.

Edward S. Winskill, Davies Pearson P.C., Tacoma, David Michael Jacobi, Wilson Smith Cochran & Dickerson, Seattle, for respondents.

MORGAN, Judge.

Francine Beckman was injured while riding as a passenger in a pickup truck driven by Donald Connolly, Jr. She sued two insurers of the truck's owner to establish coverage, and they moved for summary judgment, which was granted. We affirm.

Donald Connolly, Sr. (Senior) is the father of Donald Connolly, Jr. (Junior). In July 1990, Senior was the sole proprietor of a shake mill called D & L Cedar Products. In connection with the mill, he owned a forklift and a 5-gallon gas can. He also owned a pickup truck.

On the evening of July 10, 1990, Junior, age 17, asked if he could use the pickup for social purposes. After responding affirmatively, Senior remembered that the forklift needed gas, and he asked Junior to pick up some gas while he was out.

Taking the gas can, Junior drove to the Handy Stop in Kapowsin. There, he filled the gas can and placed it inside the cab of the truck. He did not put it in the truck's cargo bed because the bed had no tailgate.

Between home and the store, Junior picked up a friend, Angela Kilmore. After leaving the store, he picked up another friend, Francine Beckman. The three decided to drive to a rural lookout, but soon turned around because the road was too rough. While returning to town, Junior cracked open his window and lit a cigarette. An explosion ensued, and flames engulfed the cab. Junior lost control of the truck, which went off the road and over an embankment. Junior and Kilmore were able to jump out, but Beckman could not get her door open. Junior pulled her out, but not before she was burned severely.

At the time of the accident, Senior had four insurance policies. One was a business automobile policy written by Liberty Northwest Insurance Company. Another was a commercial general liability (CGL) policy, also written by Liberty. The third was an auto policy written by Farmers Insurance Company of Washington. The fourth was a homeowner's policy, also written by Farmers.

On November 11, 1991, Beckman, through her father as guardian ad litem, brought a declaratory judgment action for the purpose of establishing coverage under Senior's four policies. Farmers admitted coverage under its auto policy, but it and Liberty moved for summary judgment with respect to the other three policies. The trial court granted the motions.

On appeal, we engage in the same inquiry as the trial court. Marincovich v. Tarabochia, 114 Wash.2d 271, 274, 787 P.2d 562 (1990). Summary judgment is appropriate only "if the pleadings, depositions, ... together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." CR 56(c).

Preliminarily, Beckman advances many theories on how the accident could have happened and, as a result, argues that the case involves issues of material fact. Like the trial court, however, we think there is only one reasonable inference concerning how the accident occurred: Gas fumes collected in the cab of the truck and ignited when Junior lit his cigarette. Thus, there are no material issues of fact.

Having disposed of this preliminary issue, we turn now to the three policies. We discuss the business auto policy first, and the other two policies thereafter.

I

The business auto policy afforded coverage only for "covered autos" that fell in what Liberty labelled as categories 8 and 9. Category 8 included:

HIRED "AUTOS" ONLY. Only those "autos" you lease, hire, rent or borrow. This does not include any "auto" you lease, hire, rent, or borrow from any of your employees or partners or members of their households.[ ¹

Category 9 included:

"NONOWNED" AUTOS ONLY. Only those "autos" you do not own, lease, hire, rent or borrow that are used in connection with your business. This includes "autos" owned by your employees or partners or members of their households but only while used in your business or your personal affairs.[ ²

Elsewhere in the policy, "autos" were defined as any land motor vehicle, subject to an exception not pertinent here.

Beckman argues that the pickup was "borrowed" at the time of the accident. She reasons (1) that D & L is an entity separate from Senior's marital community, and (2) that when the accident occurred, Senior as owner of D & L was "borrowing" the pickup from Senior as a member of his marital community. In our view, however, the marital community and D & L are not separate entities, PEMCO v. Kelly, 60 Wash.App. 610, 614, 805 P.2d 822, review denied, 116 Wash.2d 1031, 813 P.2d 582 (1991); Progressive Northwest Inc. Co. v. Haker, 55 Wash.App. 828, 831, 780 P.2d 919 (1989), and one does not "borrow" from oneself. Webster's Third New International Dictionary 256 (to "borrow" is "to receive temporarily from another " (italics ours)). Thus, the pickup was not "borrowed" at the time of the accident.

Returning to the policy language, we hold that Senior's pickup did not fall within category 8, because it was not leased, hired, rented or borrowed. Nor did it fall in Category 9, because it was owned by Senior, and because it was not leased, hired, rented or borrowed. Senior's pickup was not an insured vehicle, and the business auto policy did not afford coverage.

II

The CGL and homeowner's policies contain similar language and thus generate similar issues. In the CGL policy, Liberty agreed to pay, among other things, "sums that the Insured becomes legally obligated to pay as damages because of 'bodily injury' or 'property damage' to which this insurance applies." ³ It excluded, however, " 'bodily injury' or 'property damage' arising out of the ... use ... of any ... 'auto' ... owned ... by ... any insured." ⁴

In the homeowner's policy, Farmers agreed to pay, among other things, "all damages from an occurrence which an insured is legally liable to pay because of bodily injury ... covered by this policy...." ⁵ It excluded, however, "bodily injury ... arising out of ... use ... of ... a motor vehicle owned ... by ... an insured." ⁶

Here, neither party disputes that the pickup was owned by an insured. Thus, the policy language generates two questions: (A) Was Beckman "using" the pickup at the time of her bodily injury, and (B) if so, did her bodily injury "arise out of" that use?

In arguing these questions, both parties cite and primarily rely on underinsured motorist cases. Thus, we do likewise. Further, we observe that the underinsured motorist cases can and should be divided according to the two questions we have identified. For example, in cases like Roller v. Stonewall Ins. Co., 115 Wash.2d 679, 686-689, 801 P.2d 207 (1990) (section II); Sears v. Grange Ins. Ass'n, 111 Wash.2d 636, 762 P.2d 1141 (1988); Cherry v. Truck Ins. Exchange, 77 Wash.App. 557, 892 P.2d 768 (1995); and Rau v. Liberty Mut. Ins. Co., 21 Wash.App. 326, 585 P.2d 157 (1978), the primary question was whether the claimant was "using" the insured vehicle. But in cases like Mutual of Enumclaw Ins. Co. v. Jerome, 122 Wash.2d 157, 856 P.2d 1095 (1993); Transamerica Ins. Group v. United Pac. Ins. Co., 92 Wash.2d 21, 593 P.2d 156 (1979); Heringlake v. State Farm Fire & Cas. Co., Inc., 74 Wash.App. 179, 872 P.2d 539 (1994); PEMCO v. Schlea, 63 Wash.App. 107, 817 P.2d 878 (1991); Insurance. Co. of N. Am. v. Insurance Co. of Pa., 17 Wash.App. 331, 562 P.2d 1004 (1977), review denied,89 Wash.2d 1013 (1978), and State Farm Mutual Auto. Ins. Co. v. Centennial Ins. Co., 14 Wash.App. 541, 543 P.2d 645 (1975), review denied, 87 Wash.2d 1003 (1976), the claimant's "use" of the vehicle was undisputed or apparent, and the primary question was whether the accident or injury "arose out of" such use. ⁷

A

"The term 'use' usually is construed to include all proper uses of an automobile." Transamerica, 92 Wash.2d at 26, 593 P.2d 156. Not surprisingly, then, a passenger "uses" a vehicle as he or she rides in it. Roller, 115 Wash.2d at 687, 801 P.2d 207; Sears, 111 Wash.2d at 641, 762 P.2d 1141. Sears expressly overruled Dobosh v. Rocky Mt. Fire & Cas. Co., 43 Wash.App. 467, 717 P.2d 793, review denied, 106 Wash.2d 1011 (1986), which had held that "the term 'using' ... does not encompass merely occupying a vehicle as a passenger". See Sears, at 639, 762 P.2d 1141; Dobosh, at 470, 717 P.2d 793.

Beckman argues that certain factors recited in Roller, Sears, and Rau are not met, and thus that she was not "using" the pickup even though she was a passenger in it. In each of the cases cited, the court said the criteria for whether an injury arises out of the use of a motor vehicle are that:

(1) [t]here 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 geographic 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.

Roller, at 687, 801 P.2d 207; Sears, at 639, 762 P.2d 1141; Rau, 21 Wash.App. at 334, 585 P.2d 157. We label these the Rau factors, because they were first...