Butzberger v. Foster

• Decision Date: 03 June 2002
• Docket Number: No. 47675-1-I.,47675-1-I.
• Citation: 112 Wash.App. 81,47 P.3d 177
• Court: Washington Court of Appeals
• Parties: James K. BUTZBERGER, as Personal Representative of the Estate of Jeffrey A. Butzberger, Respondent/Cross-Appellant, v. Frank FOSTER and Michaela Foster, husband and wife, and the marital community consisting thereof; King County, a political subdivision of the State of Washington, Defendants, and Allstate Insurance Company, Cross-Respondent, and T.H.E. Insurance Company, Appellant/Cross-Respondent.

47 P.3d 177

112 Wash.App. 81

James K. BUTZBERGER, as Personal Representative of the Estate of Jeffrey A. Butzberger, Respondent/Cross-Appellant, v. Frank FOSTER and Michaela Foster, husband and wife, and the marital community consisting thereof; King County, a political subdivision of the State of Washington, Defendants, and Allstate Insurance Company, Cross-Respondent, and T.H.E. Insurance Company, Appellant/Cross-Respondent.

No. 47675-1-I.

Court of Appeals of Washington, Division 1.

June 3, 2002.

William S. Clement, Satwant K. Atwal, Seattle, for Appellant.

Bradley Maxa, Tacoma, Steven Thomas, Enumclaw, for Respondents.

COX, A.C.J.

T.H.E. Insurance Company appeals a summary judgment ruling that Jeffrey Butzberger, the deceased, was "using" an automobile that T.H.E. insured. He had left the automobile by the side of the roadway, and was attempting to rescue the driver of an overturned pickup truck when he was struck and killed by an underinsured motorist. The personal representative of the estate of Butzberger cross appeals another summary judgment ruling that the deceased was not "using" the overturned truck, which Allstate Insurance Company insured, at the time of the accident.

We hold that Butzberger was "using" the overturned pickup truck, which Allstate insured, and was entitled to uninsured motorist (UIM) coverage under the Allstate policy. Butzberger was not "using" the automobile that T.H.E. insured because he was neither engaged in a transaction essential to the use of that automobile nor was there a causal connection between his injury and the use of that automobile when he was struck. We further hold that Butzberger is entitled to attorney fees against Allstate. We reverse both judgments, and remand for entry of judgment consistent with this opinion.

Early on a dark and rainy morning in November 1995, Frank Foster was driving his pickup truck north on Interstate 5 when he lost control of the vehicle. He hit an obstruction and the truck overturned, remaining on its side within the lanes of oncoming traffic. When the truck came to rest, Foster was still in his seatbelt, hanging upside down.

Shortly thereafter, Jeffrey Butzberger arrived at the scene. He was driving to work in an automobile owned by Cascade Distributing that T.H.E. insured. He pulled to the side of the highway and parked the car about 75 feet from the overturned truck. Butzberger ran to the overturned truck, spoke with Foster through the driver's door window, and asked if Foster was all right. Thirty to forty-five seconds later, while Butzberger and Foster were still talking, a northbound driver of a van collided with the pickup. Butzberger was thrown by the van's impact with the truck and died at the scene of head injuries.

Butzberger's estate sued Foster, the two insurance companies, and others not pertinent to this appeal. The trial court granted summary judgment on several claims. The court ruled that the T.H.E. policy for the Cascade automobile provided UIM coverage for Butzberger. Accordingly, the court awarded attorney fees against T.H.E. in favor of Butzberger. The court also ruled that the Allstate policy for the overturned truck did not provide UIM coverage for Butzberger.

T.H.E. appeals, and Butzberger cross appeals.

"USE" UNDER ALLSTATE'S POLICY

Butzberger argues that the court erred in granting summary judgment in favor of Allstate. Specifically, he argues that he was "using" Foster's pickup truck and is entitled to UIM coverage. We agree.

We may affirm an order granting summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.¹ All facts and reasonable inferences must be considered in the light most favorable to the nonmoving party.² We review questions of law de novo.³

The material facts are undisputed. Thus, we focus on whether Allstate was entitled to judgment as a matter of law.

The interpretation of insurance policy language is a question of law.⁴ The policy should be given a fair, reasonable, and sensible construction, as would be given to the contract by the average person purchasing insurance.⁵ Underlying the UIM statute is a strong public policy to ensure coverage for innocent victims of uninsured drivers.⁶ The purpose of uninsured motorist coverage is to permit the injured party to recover those damages he or she would have received if the tortfeasor had been insured.⁷

Under the liability provisions of the Allstate policy, any person "using" the vehicle with the named insured's permission is covered. The statutory policy of RCW 48.22.030 "vitiates any attempt to make the meaning of insured for purposes of uninsured motorist coverage narrower than the meaning of that term under the primary liability section of the policy."⁸ Thus, Butzberger may establish a right to UIM coverage under Allstate's policy by showing that he was "using" the pickup truck at the time of the accident.

The policy does not define the term "using." But Transamerica Ins. Group v. United Pac. Ins. Co. establishes that the term is broad and includes all proper uses of a vehicle.⁹ Our case law also establishes the "general criteria for determining whether a person is using a vehicle and thus insured under a UIM endorsement[.]"¹⁰ Our Supreme Court, in Sears, adopted the "general criteria" set out in a four-part test by this court in Rau v. Liberty Mut. Ins. Co. That test requires 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.[¹¹]

In Rau, a truck driver parked his employer's truck and crossed four lanes of traffic on foot to ask directions. As he returned to his truck, he was struck by an uninsured motorist while he was in one of the lanes of traffic. The impact occurred about 20 feet from where he parked the truck he had been driving.¹²

The court noted that "whether a person can be considered as `using' a motor vehicle and thus an insured under an uninsured motorist endorsement depends on the factual context of each case[.]"¹³ It then examined several cases from other jurisdictions to develop its four-part test.

Citing Hartford Accident & Indem. Co. v. Booker,¹⁴ the Rau court noted that Booker was a garbage truck driver who was struck by an uninsured motorist while he was picking up garbage some 30 feet from the garbage truck. The Booker court held there was UIM coverage under the truck's policy. The Rau court quoted that court's explanation of its holding:

In defining the word `use' of the garbage truck, we must look to the contemplation of the parties in entering into the insurance contract.... Common sense tells us that the parties certainly contemplated that the garbage truck would be loaded and unloaded and that the garbage to be loaded on said truck would be hauled to the truck by a garbage collection container and that, in many instances, it would be necessary for the driver to walk down the side of the road near his truck in order to collect the garbage.[¹⁵]

Likewise, the Rau court also cited Federated Mut. Implement & Hardware Ins. Co. v. Gupton,¹⁶ in which a federal court held that a service station employee was "using" his employer's insured truck for insurance coverage purposes. The driver of a disabled car accidentally backed into the employee while he was putting gas in the car.

The Rau court cited other cases to establish two of the parts of its test.¹⁷ And, citing Owens v. Ocean Accident & Guar. Corp., 194 Ark. 817, 109 S.W.2d 928,¹⁸ the Rau court held that the fourth part of its test required engagement "in a transaction essential to the use of the [insured] vehicle at the time [of the injury]." There, a patient who fell off an ambulance stretcher some distance from the ambulance was covered by the ambulance's liability coverage. Because the conveyance of the patient was essential to the use of the automobile as an ambulance, as distinct from its use as a motor vehicle, there was coverage.¹⁹

Synthesizing the principles of these cases, this court applied the four factors to conclude that Rau was using the delivery truck at the time he was struck. We stated that:

Common sense tells us, as it did the court which considered a similar event in Booker, that the parties contemplated the driver of a delivery truck on his route might well be expected to have to occasionally leave the truck briefly to ask directions. The driver had left the truck to seek directions as to where to make a delivery, and was returning to his truck and was 20 feet from it at the time he was struck by the uninsured motorist.[²⁰]

In Cherry v. Truck Insurance Exchange, Division Two of this court extensively discussed and applied the Rau factors. There, the court considered whether a tow truck operator, Cherry, was "using" his truck for purposes of insurance coverage under the tow truck's policy. Cherry was injured while examining an uninsured motorist's vehicle. He parked the tow truck in front of the disabled car so that its headlights and overhead lights illuminated the car. The uninsured motorist started the engine, accidentally injuring Cherry while his arm was in the engine compartment.²¹

The court applied the Rau factors, and determined that the test was met. The court concluded that a reasonable person purchasing insurance would expect an injury sustained while helping a stranded motorist to be covered by a UIM policy covering employees using the emergency service tow truck.²²

Here, the primary question is whether one who comes to the aid of a motorist trapped inside an overturned insured vehicle on a highway is "using" that...