Federated American Ins. Co. v. Strong, 4963-III-9

Citation36 Wn.App. 256,673 P.2d 873
Decision Date15 December 1983
Docket NumberNo. 4963-III-9,4963-III-9
PartiesFEDERATED AMERICAN INSURANCE COMPANY, a corporation, Respondent, v. Clyde STRONG, Appellant, and Lisa M. Strong, his wife; Karl L. Reuble and Jane Doe Reuble, his wife; Constance A. Lindell and John Doe Lindell, her husband; and Aetna Casualty and Surety Company, a corporation, Defendants.
CourtCourt of Appeals of Washington

Harry E. Ries, Ries & Kenison, Moses Lake, for appellant.

Matt Murray, Murray, Dunham & Murray, Seattle, for respondent.

RALPH P. EDGERTON, Judge Pro Tem. *

In December 1977, Clyde Strong's wife Lisa Strong, while driving his Oldsmobile Toronado automobile, intentionally collided with two other automobiles. While at the time the Strongs had been separated for several months, she was using the car with permission. She first drove her auto into one driven by Constance Lindell, then drove her vehicle around the Lindell auto and struck a second auto driven by Karl Reuble. Going into reverse gear, Mrs. Strong then backed her auto until it again struck the Lindell vehicle. After striking the Lindell auto the second time, she drove around that auto and into the Reuble car a second time, then turned her auto around and attempted to drive it up an embankment up which Mrs. Lindell was retreating. At the time of these collisions the Strong auto was covered by an insurance policy in full force and effect with the plaintiff Federated American Insurance Company. That policy provided liability and physical damage coverage.

In May 1979, Federated American Insurance Company brought a declaratory judgment action against the Strongs and others seeking a decision of no liability for the results of the December 1977 collisions. Defendant Clyde Strong answered, denying plaintiff insurance company's claim that its policy did not cover the resulting loss, and counterclaimed that the company had breached its contract in that it had failed and refused to provide him with a defense to the Reubles' suit for damages arising from the automobile collisions brought against him, a defense he had tendered the company, and that the company had additionally violated the Washington Consumer Protection Act. In an amended counterclaim, Clyde Strong also sought recompense for his damaged auto. Plaintiff's reply denied the allegations of both counterclaims.

Lisa M. Strong, one of the original defendants, made no appearance in the action. All other defendants except for Clyde Strong were dismissed from the case by stipulation. Consequently, Federated American Insurance Company, and defendant Clyde Strong alone remain contestants in this appeal. Both Strongs were included in the insurance contract's coverage where its protective provisions apply.

The insurance contract in question had two parts: one entitled Liability Section, the other, Physical Damage Section. Under Liability, plaintiff agreed to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of

A. bodily injury, sickness or disease, including death resulting therefrom, hereinafter called "bodily injury," sustained by any person;

B. injury to or destruction of property, including loss of use thereof, hereinafter called "property damage";

However, the insurance contract contained this exception:

This policy does not apply under the Liability Section:

* * *

(b) to bodily injury or property damage caused intentionally by or at the direction of the insured;

That Lisa Strong intentionally drove her auto into two other automobiles stands unchallenged. The trial judge made this finding:

That on or about December 12, 1977 the defendant Lisa M. Strong was driving said 1975 Oldsmobile Toronado automobile when she intentionally and at her direction caused said automobile to collide on two occasions with the automobile owned and driven by Karl L. Rueble [sic ] and an automobile owned and driven by Constance A. Lindell, said collisions occurring on Interstate Highway 90 approximately 5.3 miles east of Moses Lake, Washington.

No error is assigned to that finding, and so on appeal it becomes a verity. Persing, Dyckman & Toynbee, Inc. v. George Scofield Co., 25 Wash.App. 580, 582, 612 P.2d 2 (1980). Moreover, a criminal charge being lodged against Lisa Strong as a result of the collisions, she pleaded guilty to a plea bargaining charge of malicious mischief. The trial judge in this case was the sentencing judge in that case, thus giving him double knowledge of the facts. Obviously, Lisa Strong would not be covered or protected by the policy under its liability section.

With respect to the Physical Damage Section of the contract, the policy provided:

Coverage E--Collision: To pay for loss to the owned automobile or non-owned automobile caused by collision.

In a subsequent paragraph, the policy defines "loss" as

"loss" mean[s] direct and accidental loss of or damage to (a) the automobile, including its equipment, or (b) other insured property;

and "collision" as

"collision" means collision of an automobile covered by this policy with another object or with a vehicle to which it is attached or by upset of such automobile;

Thus, the loss for which the company would be liable under the insurance policy would have to be accidental. An intentional auto collision does not produce an accidental loss. The collisions resulting from intentional acts on the part of Lisa Strong were not accidents and accordingly plaintiff is in no way obligated to her.

There remains the issue of whether Federated American Insurance Company is obligated to defend Clyde Strong in the Reuble action brought against him.

The Liability Section of the contract contains the following severability clause:

The insurance afforded under the Liability Section applies separately to each insured against whom claim is made or suit is brought, ...

Based on this, defendant argues he is not excluded from the coverage of the contract because of his wife's malfeasance, although his wife is; that her intentional actions are not his; that he is separately insured. He relies on Unigard Mut. Ins. Co. v. Spokane Sch. Dist. 81, 20 Wash.App. 261, 579 P.2d 1015 (1978), and the following statement of the rule there announced:

The policy extends defense and indemnification to "the Insured," and it excludes from coverage intentional acts resulting in injury or damage "expected or intended from the standpoint of the insured." The parties concede the boy and the Hensleys are all "insureds" under the policy. In such instances, where coverage and exclusion is defined in terms of "the insured," the courts have uniformly considered the contract between the insurer and several insureds to be separable, rather than joint, i.e., there are separate contracts with each of the insureds. The result is that an excluded act of one insured does not bar coverage for additional insureds who have not engaged in the excluded conduct.

Unigard Mut. Ins. Co., at 265-66, 579 P.2d 1015. Following this case as precedent, although Lisa M. Strong's action was intentional and therefore there could be no liability coverage as to her, her husband's separate coverage would still obligate plaintiff insurance company to cover and protect him. This assumes that the fault of the one member of the marital community, her act excluded under the policy, would not be imputed to her spouse so as to defeat his claim for protection under the contract. While there may be a question as to whether the severability clause applies where a marital community is comprised of two insureds, there is another principle involved in this case.

Lisa Strong's intentional collision constituted not only a tort, but a criminal act. Indeed, she was so charged and convicted. This, then, was beyond the scope of her use, whether treated as family or marital community use. A husband is not liable for the acts of his wife in operating a motor vehicle solely by virtue of their relationship. As stated with respect to a child of the family: "The liability, if any exists, must rest in the relation of agency or service". Birch v. Abercrombie, 74 Wash. 486, 491, 133 P. 1020 (1913). Both the family use doctrine and community responsibility for torts are parallel rules grounded in the law of principal and agent, and, although broadened as they have become by adaptation to differing times, needs and circumstances, one major premise remains--that they must have been employed in the express or implied exercise of authority within the scope of the agency. Lisa Strong's collisions do not meet that test. If it be concluded that there is no community liability in this case, no personal liability on husband Strong's part, and because of the severability clause, he is still covered by the insurance contract, why would he not be entitled to have the insurance company defend him in the suit brought against him arising out of the collisions? The answer is that such a result would be a benefit to the Strong marital community. Since it would arise from the wrongdoing of one of its members, it would violate public policy to reward that community. Even though as such it would not be liable (one member being totally at fault, the other factually quite innocent and the guilty one acting outside the scope of any agency, express or implied), a community could not lawfully benefit from the wrongful act of one of its members. Our court has so held in U.S.F. & G. Ins. Co. v. Brannan, 22 Wash.App. 341, 589 P.2d 817 (1979), where it is said at page 349, 589 P.2d 817:

To permit the other spouse, in this case the wife, to get the benefit of the insurance would mean that the community would benefit from the wrongful act of one of its members. This would be contrary to public policy. Unigard does not support this result even though there are separate insureds. The...

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