Brummett v. Grange Ins. Ass'n

• Decision Date: 14 May 1971
• Docket Number: No. 254--III,254--III
• Citation: 4 Wn.App. 979,485 P.2d 88
• Parties: Eidon B. BRUMMETT and Evelyn Brummett, husband and wife, Respondents, v. The GRANGE INSURANCE ASSOCIATION, a domestic insurance corporation, Appellant.
• Court: Washington Court of Appeals

Page 979

4 Wn.App. 979

485 P.2d 88

Eidon B. BRUMMETT and Evelyn Brummett, husband and wife, Respondents, v. The GRANGE INSURANCE ASSOCIATION, a domestic insurance

corporation, Appellant.

No. 254--III.

Court of Appeals of Washington, Division 3.

May 14, 1971.

Terry A. Brooks of Nashem, Prediletto & Brooks, Yakima, for appellant.

Walter E. Weeks, Jr., of Wilson & Weeks, Yakima, for respondents.

EVANS, Judge.

The sole issue presented upon this appeal is whether the uninsured motorist endorsement of an automobile liability insurance policy issued by the Grange Insurance Association to Eldon and Evelyn Brummett, husband and wife, provided coverage for damages resulting from the wrongful death of the Brummetts' two minor children.

The facts are not in dispute. On August 19, 1969 Elizabeth Brummett, age 16, and Leslie Brummett, age 12, were in sleeping bags near a collapsible swimming pool located in the back yard of their parents' home. An uninsured automobile left the roadway adjacent to the yard, crashed through a fence, and after running over the girls struck and broke open the swimming pool which was above ground level. The automobile dragged the girls into the pool, causing their death by drowning.

At the time of this tragic accident respondents, Mr. and Mrs. Brummett, were named insured under an automobile liability policy issued by Grange Insurance. The deceased children were also insureds by definition under the uninsured motorist supplement of said policy.

In a proceeding commenced by the Brummetts to compel arbitration in accordance with policy provisions of the insurance contract, Grange Insurance sought to stay arbitration and also filed a motion for declaratory judgment. It appeals from judgment entered by the trial court declaring Grange Insurance liable to pay to respondents, within the policy limits, all damages which respondents have suffered as a result of the death of their two minor children, including damages for loss of love and companionship of said children and destruction of the parent-child relationship.

In support of its contention the trial court erred in its determination, appellant first argues that the insurance provision. which obliges appellant 'to pay all damages which the insured shall be legally entitled to recovery from the owner or operator of an uninsured automobile because of bodily injuries sustained by the insured * * *', yields only one reasonable interpretation, namely, that the damages covered are those personal to the injured or deceased person covered under the policy. We need not pass upon this contention, however, because it is not the language of the insuring agreement, but rather the language of RCW 48.22.030, enacted by the legislature in 1967, which is controlling of the issue presented. This statute provides in pertinent part:

On and after January 1, 1968, no * * * policy * * * insuring against loss resuling from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, * * * For the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles * * * because of bodily injury * * * Including death, resulting therefrom, * * *

(Italics ours.)

The public policy thus expressed by the legislature imposes an obligation upon insurers to provide protection to their insureds against loss caused by wrongful conduct of an uninsured motorist. Any limiting language in an insurance contract which has the effect of providing less protection than that made obligatory by the above statute would be contrary to the public policy as expressed, and of no force and effect.

There have been no decisions of our Supreme Court on the precise question of whether the coverage required by RCW 48.22.030 includes those damages provided by RCW 4.24.010 for the loss suffered by parents due to the wrongful death of a minor child. Courts of other jurisdictions, however, have had occasion to interpret similar statutes containing language identical to RCW 48.22.030. One of the leading cases in this respect is Davis v. United States Fidel. & Guar. Co., Fla.App., 172 So.2d 485 (1965), which construes a Florida statute containing language identical to the Washington statute. ¹ There the court stated at page 486 The cited statute requiring that protection against uninsured motorist be provided in all automobile liability insurance policies issued in this state, * * * established the public policy of this state to be that every insured, within the definition of that term as defined in the policy, is entitled to recover under the policy for the damages he or she would have been able to recover against the offending motorist if that motorist had maintained a policy of liability insurance. It is our view that when the insurance company inserted the limiting words 'sustained by the insured' * * * in the policy issued in this case it sought to restrict the coverage afforded by the policy in a manner contrary to the intent of the statute. It necessarily follows that the restrictive language inserted in the insurance policy being considered has the effect of defeating the purpose and intent of the statute and must be considered nugatory and of no effect.

In Zeagler v. Commercial Union Insurance Co. of New York, (Fla.App., 166 So.2d 616,) the Third District Court of Appeal in considering the identical...