Burr v. Lane

• Decision Date: 14 January 1974
• Docket Number: No. 1516--I,1516--I
• Citation: 517 P.2d 988,10 Wn.App. 661
• Parties: , 517 P.2d 988 Kenneth BURR and Jane Doe Burr, husband and wife, Appellants, v. Robert B. LANE and Jane Doe Lane, husband and wife, Defendants, Continental Casualty Company, a foreign corporation, Respondent/Cross- Appellant.
• Court: Washington Court of Appeals

Page 661

10 Wn.App. 661

10 Wn.App. 412, 517 P.2d 988

Kenneth BURR and Jane Doe Burr, husband and wife, Appellants, v. Robert B. LANE and Jane Doe Lane, husband and wife, Defendants Continental Casualty Company, a foreign corporation Respondent/Cross- Appellant.

No. 1516--I.

Court of Appeals of Washington, Division 1.

Jan. 14, 1974.

As Corrected Feb. 26, 1974.

Donald W. Marken, Seattle, for appellants.

Lane, Powell, Moss & Miller, Robert L. Israel, Seattle, for respondent.

HOROWITZ, Judge.

Plaintiff Kenneth Burr, holder of a default judgment against the insured Robert B. Lane for damages sustained in an automobile collision, appeals an order dismissing plaintiff's writ of garnishment against the insurer, Continental Casualty Company, brought to collect the default judgment.

The controlling question presented concerns the injured plaintiff's right to garnishment relief when the insurer claims defenses against the insured on the insurance policy the proceeds of which are sought to be garnished.

A summary of the stipulated facts follows. ¹

On June 5, 1965, Robert B. Lane brought his Ford car into a repair shop in Lakewood, Washington, for examination and repair. He had purchased the Ford car with an NSF check. On or about June 8, the seller of the car appeared at the repair shop stating the car had been so purchased. He later repossessed the car. When the car was brought in, the shop owner was also an agent for Best Rent-A-Car, Inc., a car rental company. On June 5, 1965, Lane rented and took possession of a Dodge car, signing a Best Rent-A-Car, Inc. rental agreement. The rented car was to be returned to the shop on June 9, 1965 and the car rental fee paid at that time. The rental agreement also provided for liability insurance with Continental Casualty Company for bodily injury and property damage, by which Lane became an insured along with the named insured, Best Rent-A-Car, Inc. Premiums for the policy to be paid to the insurer were derived from car rental receipts.

On June 11, 1965, Lane, while operating the Dodge car, collided with a car operated by plaintiff. The Dodge car was damaged in an unstated amount. It was never returned to the Lakewood location called for in the rental agreement. On June 19, 1965 the damaged car was discovered parked in the Bellevue lot of another Best Rent-A-Car, Inc. office. Lane never returned to pay and never paid any rental for the car. He gave no notice of the June 11, 1965 accident to the rental company, the repair shop, or to the insurer.

On June 29 and July 27, 1965, plaintiff's attorneys wrote the rental company at its Bellevue office notifying it of the June 11 accident. The rental company forwarded the letters to the insurer, who received them. On July 6, 1965 the insurer wrote plaintiff's attorneys stating the claim referred to in their letter was being investigated. On August 12, 1965 the insurer wrote plaintiff's attorneys as follows:

We are the insurers of Best Rent-A-Car.

Because Mr. Robert B. Lane failed to make the consideration necessary for the rental of one of our vehicles and obtained the vehicle under questionable circumstances, we are unable to afford coverage to Mr. Lane.

Unless you are able to prove negligence on the part of Best Rent-A-Car, we are unable to give any consideration to your client's claim.

Plaintiff on December 9, 1966 filed a summons and complaint naming Kenneth Burr and Jane Doe Burr as plaintiffs, Robert B. Lane and Jane Doe Lane as defendants, and Best Rent-A-Car, Inc. as an additional defendant. Summons and complaint were served on the additional defendant on December 22, 1966, but no service was made on the named defendants. On January 6, 1967 a law firm entered an appearance on behalf of the named defendants, Robert B. Lane and Jane Doe Lane and Best Rent-A-Car, Inc. It is reasonably inferable from the stipulated facts the insurer knew of the action brought and that the attorneys were representing it as well as the parties for whom they expressly appeared. However, neither the appearing attorneys nor the rental company nor the insurer, despite their attempts to locate Lane, learned Lane's whereabouts. They knew he had left the jurisdiction.

On May 15, 1967, pursuant to stipulation, Best Rent-A-Car, Inc. was dismissed from the litigation. The stipulated facts do not state the appearing attorneys withdrew their appearance for named defendants Lane. Plaintiff, but not the insurer or rental company, finally discovered Lane's whereabouts on August 28, 1967, but did not inform the insurer of that discovery. Plaintiff then served Lane with summons and complaint while he was incarcerated in the Marin County jail at San Raphael, California. Lane was then in the military service of the United States. When Lane was served, plaintiff's attorneys left with him an additional copy of the summons and complaint with instructions to forward it to 'the insurance company.' Neither Best Rent-A-Car, Inc. nor Continental Casualty Company received the summons and complaint, and neither was notified or contacted by defendant Lane advising it of the fact of service. Following the rental of the car on June 5, 1965, Lane never contacted either the car rental company or the insurer and they had no contact with him.

On December 15, 1967 plaintiff's attorneys, on ex parte motion, secured an order of default against defendant Lane. On July 12, 1968 plaintiff obtained a judgment in his favor against Lane for $9,507.50. The record does not itemize the damages. Service upon Lane, the motion for and order of default, and the subsequent judgment were taken by plaintiff's attorneys

without notice to Best Rent a Car, Inc., Continental Casualty Co., or their attorneys . . . The first notice of these events was communicated by plaintiff's attorneys to Continental Casualty Co. by letter dated October 24, 1968 . . .

Subsequently, the insurer refused to pay the judgment. On October 8, 1970 plaintiff's attorneys sued out a writ of garnishment. The insurer answered denying liability. Plaintiff controverted the answer. After trial below, the writ of garnishment was dismissal. This appeal and cross-appeal followed.

PLAINTIFF KENNETH BURR'S APPEAL

At the outset, the insurer contends plaintiff's assignments of error are not reviewable because of his failure to comply with CAROA 42(g)(1)(iii) and CAROA43. The only assignment of error made reads: 'Error is assigned to the trial court's judgment dismissing appellant's writ of garnishment.' Such a general assignment is but an invitation to search the record for specific errors on which the general assignment rests, such as error in findings or conclusions, or both. Standing alone, the assignment would be insufficient under the rationale of Pederson v. Pederson, 41 Wash.2d 368, 249 P.2d 385 (1952). See Koster v. Wingard, 50 Wash.2d 855, 314 P.2d 928 (1957). However, we are able to pass on the contentions raised based on the assignment of error in its total form. The assignment's further statement in effect complains of the conclusions of law. The statement reads:

The issues raised by this appeal in the order that they will be argued in this brief are as follows:

A. Whether defendant Lane had converted the rental vehicle to his own use and was not an insured under respondent's policy of insurance at the time of the accident.

B. Whether the policy condition precedent as to giving notice of accident was satisfied by appellant's attorney.

C. Whether respondent waived any breach of policy condition precedent as to notice of accident by denying coverage on other grounds and waived subsequent compliance with policy conditions precedent as to forwarding suit papers and assisting and cooperating in the defense of the action.

We are able to review the error assigned under the rationale of Bruckurt v. Cook, 30 Wash.2d 4, 190 P.2d 725 (1948); In re Estate of Whittier, 26 Wash.2d 833, 176 P.2d 281 (1947); Moore v. Spokane, 88 Wash. 203, 152 P. 999 (1915).

Plaintiff disagrees with the court's conclusion that defendant Robert B. lane

was not an insured under the policy of insurance maintained by garnishee defendant at the time of the accident, having by his actions, without lawful justification, deprived the lawful owner (Best Rent a Car) of the possession of its property (rental vehicle), thereby converting it to his own use.

Conclusion of law No. 3. Plaintiff relies on Guaranty Nat'l Ins. Co. v. Mihalovich, 72 Wash.2d 704, 435 P.2d 648 (1967). Mihalovich held the mere retention of a rented car for about a month after the period of bailment was insufficient to establish a conversion. The court stated intent is not necessary to establish a conversion, but 'it is still necessary, in order to transform a bailment into a conversion, that the bailee has, in some way, decisively indicated a repudiation of the right of the owner to the car.' 72 Wash.2d at 710, 435 P.2d at 652. Contrast Stewart v. Davis, 31 Ark. 518, 25 Am.R. 576 (1876).

The insurance company distinguishes Mihalovich on the basis of circumstantial evidence of conversion in the instant case not appearing in Mihalovich. Thus, Lane did not pay or return to pay the rental so as to constitute a recognition of the owner's right to the car. He did not return the vehicle at the time and place required and, when he did leave the vehicle, he did so surreptitiously and at a far removed location. Sufficient time elapsed from June 5 to the return date of June 9 to permit the Ford seller's discovery of the NSF check, raising the possibility of Lane's arrest on a bad check charge. RCW 9.54.050. The seller of the Ford car did discover and complain of the NSF check on or about June 8. Assuming, notwithstanding the circumstances under which Lane obtained the rented car, Lane originally intended to return the car, his possible fear of discovery and arrest could explain his deliberately keeping and retaining possession of the rented car on and after June 9, instead of returning...