Butzberger v. Foster

• Decision Date: 06 May 2004
• Docket Number: No. 72807-1.,72807-1.
• Court: Washington Supreme Court
• Parties: James K. BUTZBERGER, as Personal Representative of the Estate of Jeffrey A. Butzberger, Petitioner, 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, Petitioner, and T.H.E. Insurance Company, Respondent.

89 P.3d 689

151 Wash.2d 396

James K. BUTZBERGER, as Personal Representative of the Estate of Jeffrey A. Butzberger, Petitioner, 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, Petitioner, and T.H.E. Insurance Company, Respondent.

No. 72807-1.

Supreme Court of Washington, En Banc.

Argued May 6, 2003.

Decided May 6, 2004.

As Amended on Denial of Reconsideration July 20, 2004.

Edwin Snook, Kirkland, WA, for Petitioner Butzberger.

Gordon Thomas Honeywell, Bradley Maxa, Tacoma, WA, Steven J. Thomas, Enumclaw, WA, Elena L. Garella, Seattle, WA, for Petitioner Allstate Insurance Company.

Gardner Bond Trabolsi, St. Lois & Clement, PLLC., William Clement, Susan K. Atwal, Seattle, WA, for Respondent.

SANDERS, J.

While attempting to rescue Frank Foster, trapped inside his overturned pickup truck on Interstate 5, Jeffrey Butzberger was struck and killed by an underinsured motorist. Butzberger's estate brought suit seeking to recover underinsured motorist (UIM) coverage from the insurer of Foster's vehicle and the insurer of the vehicle Butzberger had been driving. The trial court granted summary judgment on several claims, ruling Butzberger was entitled to UIM benefits under the policy covering his vehicle but not under the policy covering Foster's vehicle. The Court of Appeals reversed, holding Butzberger was entitled to UIM benefits under the policy covering Foster's vehicle but not under the policy covering Butzberger's vehicle. We hold Butzberger is entitled to UIM benefits under both policies. Accordingly we affirm in part and reverse in part.

FACTS

On an early morning in November 1995 Frank Foster was driving his pickup truck north on Interstate 5 when he lost control of the vehicle. His truck spun across the highway, struck a barrier, overturned, and came to rest on its side within the lanes of oncoming traffic. Foster remained inside the truck, hanging by his seat belt. Allstate Insurance Company insured Foster's truck.

Butzberger was also driving north on Interstate 5 that morning on his way to work. He was driving a vehicle owned by Cascade Distributing that T.H.E. Insurance Company insured. When Butzberger saw the overturned pickup he parked his car on the shoulder of the highway, behind another vehicle that had also pulled over, approximately 75 feet from Foster's pickup. Butzberger ran to Foster's truck where he spoke with Foster for approximately 30 to 45 seconds.¹ While they were talking, Lawrence Phillips, also driving northbound, slammed into the undercarriage of Foster's pickup. Butzberger was thrown by the force of the crash and died at the scene.

Butzberger's estate sued Foster, Allstate, and T.H.E., claiming Butzberger was entitled to UIM coverage.² The Allstate policy insuring Foster's truck provides UIM coverage to "[a]ny person while in, on, getting into or out of an insured motor vehicle." Suppl. Clerk's Papers (SCP) at 502. The policy also provides general liability coverage to "any other person using [the insured auto] with [the named insured's] permission." SCP at 489 (emphasis added). The T.H.E. insurance policy insuring Butzberger's vehicle provides UIM coverage for anyone who is "occupying" the insured vehicle. SCP at 385. "Occupying" is defined as "in, upon, getting in, on, out or off." SCP at 387. In addition to UIM coverage the T.H.E. policy provides general liability coverage for anyone "using" the insured auto with the named insured's permission. SCP at 367. Neither policy defines the term "using."

The trial court ruled on summary judgment that the T.H.E. policy provided UIM coverage for Butzberger and the Allstate policy did not. As a result, the trial court awarded attorney fees against T.H.E. in favor of the estate.

T.H.E. appealed and the estate cross-appealed. The Court of Appeals, Division One, reversed the trial court and ruled Butzberger was "using" Foster's pickup truck and not the vehicle Butzberger had been driving. Butzberger v. Foster, 112 Wash.App. 81, 84, 47 P.3d 177 (2002). Therefore, the court held Butzberger was entitled to UIM benefits from Allstate but not from T.H.E. Id. The court also awarded the estate attorney fees against Allstate. Id.

Allstate and the estate filed separate petitions for review, which this court granted. The estate seeks UIM coverage for Butzberger from both Allstate and T.H.E., while Allstate seeks a reversal of the Court of Appeals ruling that Butzberger was entitled to UIM coverage from Allstate.

STANDARD OF REVIEW

When reviewing an order of summary judgment we engage in the same inquiry as the trial court. See CR 56(c). Our review is de novo. Jones v. Allstate Ins. Co., 146 Wash.2d 291, 300, 45 P.3d 1068 (2002). Summary judgment is appropriate only if there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Clements v. Travelers Indem. Co., 121 Wash.2d 243, 249, 850 P.2d 1298 (1993). The interpretation of insurance policy language is a question of law, also reviewed de novo. See Roller v. Stonewall Ins. Co., 115 Wash.2d 679, 682, 801 P.2d 207 (1990). The policy language is to be given the same "`fair, reasonable, and sensible construction as would be given to the contract by the average person purchasing insurance.'" Overton v. Consol. Ins. Co., 145 Wash.2d 417, 424, 38 P.3d 322 (2002) (quoting Sears v. Grange Ins. Ass'n, 111 Wash.2d 636, 638, 762 P.2d 1141 (1988)).

ANALYSIS

I.

UIM coverage is mandated by statute as one of "many regulatory measures designed to protect the public from the ravages of the negligent and reckless driver." Touchette v. N.W. Mut. Ins. Co., 80 Wash.2d 327, 332, 494 P.2d 479 (1972); see RCW 48.22.030. Even if the UIM endorsement of a particular policy does not contain the words "use" or "using," those words are deemed contained in the endorsement "by force of [the UIM] statute and judicial construction." Rau v. Liberty Mut. Ins. Co., 21 Wash.App. 326, 331, 585 P.2d 157 (1978). The statutory policy of Washington's UIM statute "`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.'" Id. at 328-29, 585 P.2d 157 (quoting RCW 48.22.030). Therefore, Butzberger, who is not a named insured on either policy at issue, is entitled to UIM coverage if he was using Foster's truck at the time of his death and/or if he was using the vehicle he had been driving.

Whether one was using a vehicle is so common an inquiry in the insurance industry that the Court of Appeals in Rau established a four-factor test:

(1) there 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 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.

Id. at 334, 585 P.2d 157 (citations omitted); see also Roller, 115 Wash.2d at 687, 801 P.2d 207; Sears, 111 Wash.2d at 639, 762 P.2d 1141.

In Rau a truck driver crossed four lanes of traffic on foot to ask for directions and as he was returning to his vehicle he was hit by an uninsured motorist. Rau, 21 Wash.App. at 327, 585 P.2d 157. The accident occurred approximately 20 feet from his truck. Id. The court held he satisfied the four-factor test for use of his vehicle. Id. at 334, 585 P.2d 157. It reasoned, "Common sense tells us ... 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." Id. at 334, 585 P.2d 157.

This court adopted the Rau test in Sears. Sears, 111 Wash.2d at 639, 762 P.2d 1141. There we held a guest passenger injured in an automobile accident was using the vehicle she was riding in for purposes of UIM coverage. Id. We stated that "`use' will not be interpreted to have a unique meaning. Rather, the general criteria for determining whether a person is using a vehicle and thus insured under a UIM endorsement will be followed." Id. at 638, 762 P.2d 1141. We then applied the four factors of Rau but did so without analysis concluding, "[i]n the factual context of this case, we find all four criteria are met." Id. at 639, 762 P.2d 1141.

Then in 1990 this court decided that a passenger was not using his vehicle after he exited, left the scene to call police, and returned to write down a license plate number.³ Roller, 115 Wash.2d at 689, 801 P.2d 207. Once again we relied on the Rau test, but as the Court of Appeals in Cherry v. Truck Insurance Exchange, 77 Wash.App. 557, 566, 892 P.2d 768 (1995) recognized, we "did not explain causal connection, proximity, vehicle orientation, or [our] reasoning in applying [those] factors." Thus although this court adopted the Rau test in Sears and followed that test in Roller, we have never critically examined the underlying meaning and purpose of each of the four factors. We take the opportunity to do so here.

Causal Relation or Connection.

For the first factor, causal relation or connection, Rau looked to Federated Mutual Implement & Hardware Insurance Co. v. Gupton, 241 F.Supp. 509 (E.D.S.C.1965),aff'd,357 F.2d 155 (4th Cir.1966). Rau, 21 Wash.App. at 333,585 P.2d 157. There a gasoline station employee used his employer's pickup truck to deliver a can of gasoline to a stalled vehicle. Gupton, 241 F.Supp. at 510. The employee parked the truck behind the stalled vehicle, removed the gasoline can, and began pouring the fuel into the vehicle's tank. Id. at 510. While the employee filled the gas tank the driver of the stalled vehicle started her...