Detweiler v. J.C. Penney Cas. Ins. Co., 52773-3
| Decision Date | 03 March 1988 |
| Docket Number | No. 52773-3,52773-3 |
| Citation | 110 Wn.2d 99,751 P.2d 282 |
| Parties | Stephen DETWEILER and Karen Detweiler, husband and wife, Respondents, v. J.C. PENNEY CASUALTY INSURANCE COMPANY, a foreign corporation, Appellant. |
| Court | Washington Supreme Court |
Thompson, Krilich & La Porte, P.S., Joseph G. Tucci, Jr., Tacoma, for appellant.
Dorman, Meyers & McMenamin, William H. Sumerfield, John J. Dorman, Tacoma, for respondents.
This case involves a claim made under the uninsured motorist (UM) coverage of an automobile insurance policy. The facts concerning the claimant's injury are unusual, as were the procedures whereby the claimant obtained a money judgment against the insurer, J.C. Penney Casualty The litigation in this case arose out of the following facts. The claimant, Stephen Detweiler, who had been drinking beer with another man in a tavern, adjourned to the claimant's home where they drank some more beer and then some whiskey. As they prepared to leave, the other man drove off in the claimant's pickup truck. The claimant leaped onto the bed of the departing pickup, grabbed hold of the roll bar and was taken on a wild night ride through city streets and back roads. Eventually, the pickup abruptly decelerated and the claimant fell or was thrown off. The driver of the pickup then turned and drove past the claimant who by then was on the roadway and had drawn the loaded .357 Magnum pistol he was carrying. The claimant, from his position on the roadway, fired six bullets from a point blank range (as close as approximately 10 to 12 feet) at the steel left rear wheel and tire of the passing pickup in an effort to stop it. The bullets fragmented when they hit the steel wheel, axle and frame, and the claimant's face and neck were spattered with metal fragments which caused him neck, facial and eye injuries.
Insurance Company. Although the UM endorsement required arbitration of damages and liability issues, the trial court entered a summary judgment for damages against the insurer in the declaratory judgment action brought by the claimant to determine disputed coverage issues. We reverse the summary judgment against the insurer and remand for trial on a factual issue relating to coverage
The claimant brought this declaratory judgment action against the insurance carrier for his pickup truck, J.C. Penney Casualty Insurance Company, seeking a declaration that he had the right to recover for his injuries under the insurance policy on his own pickup truck. It is the claimant's theory that he is covered for this occurrence by the UM endorsement on the policy as well as the personal injury protection (PIP) endorsement on the policy. The claimant also filed a separate personal injury action against the uninsured driver.
For purposes of convenience, we will herein refer only to the UM coverage. The driver had no insurance, therefore, the underinsured motorist (UIM) coverage is not involved. Our holding on the UM coverage issue in this case also pertains to the PIP coverage of the policy.
The claimant and insurer each separately moved for summary judgment on the coverage issue. The trial court denied the insurer's motion for summary judgment. Then, just before the date set for trial of the claimant's declaratory judgment action, it granted the claimant's motion for summary judgment. The insurer appealed and we granted direct review.
Four issues are presented.
ISSUE ONE. Were the claimant's injuries caused by "accident" as required by the UM coverage clause?
ISSUE TWO. Did the pickup driver's liability for the claimant's damages arise out of the "ownership, maintenance, or use" of the uninsured motor vehicle as required by the UM coverage clause?
ISSUE THREE. Does the insurance policy's coverage limitation for vehicles owned by or furnished for the regular use of any named insured or any family member exclude claimant's UM claim?
ISSUE FOUR. Did the trial court err when, in the declaratory judgment action: (1) it considered the findings of fact that had been entered in claimant's personal injury action against the uninsured pickup driver; (2) held that those findings were determinative of liability and damages; and (3) entered a money judgment in the claimant's favor against the insurer?
ISSUE ONE.
CONCLUSION. Under the somewhat bizarre facts of this case, we conclude that there was a factual issue as to whether or not the claimant's injuries were caused by "accident" within the contemplation of the uninsured motorists' coverage on the claimant's pickup truck. The summary judgment for the claimant on the coverage issue must, therefore, be reversed and the cause remanded for trial of that issue.
Uninsured motorist insurance policies and endorsements usually state who is entitled to seek indemnification either by defining the term "insured" or by specifying the meaning to be accorded the term "covered person" in the policy. 1 The UM coverage clause in the automobile insurance policy on the pickup truck reads as follows:
We will pay damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by a covered person and caused by an accident. The owner's or operator's liability for these damages must arise out of the ownership, maintenance or use of the uninsured motor vehicle.
(Emphasis in policy deleted; our italics added.)
Applying the facts of this case to the language of the foregoing coverage clause, we observe that the claimant owned the pickup, bought the insurance policy on it, and was the named insured on the policy declarations. Accordingly, the claimant is a "covered person". In the separate personal injury action brought by the claimant against the pickup driver, the claimant was held to be legally entitled to recover damages from the driver. In the declaratory judgment action brought by the claimant against the insurer, it was uncontroverted that the driver had taken the pickup without permission and had no liability insurance coverage under the policy on the pickup. 2 Thus, under the policy's UM endorsement, the pickup was an uninsured motor vehicle.
The insurer raises three primary coverage issues on appeal, others of which we deal with under Issues Two and Three herein; it raised them unsuccessfully in the trial court.
The insurer first argues that whether the claimant's injuries were "caused by an accident", as required by the UM coverage clause, is at least a question of fact and one it was entitled to have tried to a jury. Under the facts presented, we agree.
Where, as here, the word "accident" is not otherwise defined in a policy, 3 we look to our common law for definition. As summarized by Judge McInturff writing for the Court of Appeals in Unigard Mut. Ins. Co. v. Spokane Sch. Dist. 81, 20 Wash.App. 261, 263-64, 579 P.2d 1015 (1978),
In a long line of cases our courts have said that an accident is never present when a deliberate act is performed unless some additional unexpected, independent and unforeseen happening occurs which produces or brings about the result of injury or death. The means as well as the result must be unforeseen, involuntary, unexpected and unusual.
(Footnotes omitted.) 4
Based on this principle, coverage has been denied as a matter of law when what occurred was clearly not an "accident".
In Unigard, it was held that the intentional and deliberate act of an 11-year-old boy in starting a fire that caused $250,000 damage to a school building was not an "accident" despite the boy's protestations that he neither intended nor expected the fire to damage the school.
In a case where death was caused by a fatal backhanded blow administered by one person to another, the fatality was found not to be an "accident" even though the one who delivered the blow said that he intended no harm. 5
Similarly, the taking of indecent liberties with a young girl was held not to be an "accident" even though the child molester said he intended no harm and an expert witness opined that "sexual molesters or offenders such as [the molester] rarely intend to harm their victims." 6
In yet another case it was held that "[w]here the minor insured allegedly viciously assaulted and beat another youngster, we cannot conclude that the means was accidental." 7
And where the insured's act of anal sexual intercourse with another was deliberate, it was held not to have been an accidental injury under the insured's homeowners policy. 8
There are many definitions of the word "accident". Judging from the plethora of law on the subject, 9 no one of them seems to be perfectly satisfactory to everyone. The definition of "accident" applied in the cases just discussed is founded on the elemental proposition that injuries will not be deemed caused by accident where the injuries are intentionally inflicted, this generally being considered a risk which it would be against public policy to insure. 10 Thus, for example, the law will not countenance one intentionally shooting someone and then saying that since he or she did not intend to hurt the person shot, what happened was an "accident" covered by liability insurance.
In one case that cited the Unigard means/result definition of "accident" described earlier, the coverage question was held to require a factual determination necessitating a trial in order to decide whether what occurred was an "accident" or not. That case involved a person who could swim fairly well. He was seen running in and out of traffic on the roadway near the west end of the Evergreen Point Floating Bridge, before he leaped into the water and drowned. It was held that under the circumstances there was a factual issue as to whether the death was caused by accidental bodily injury. After reviewing the facts, the court concluded that a jury could reasonably infer that "he intended merely to leap to a point of relative safety not realizing the...
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