Gerken v. Mutual of Enumclaw Ins. Co., s. 12533-5-II

• Court: Court of Appeals of Washington
• Writing for the Court: SWEENEY; THOMPSON, C.J., and SCHULTHEIS
• Citation: 872 P.2d 1108,74 Wn.App. 220
• Parties: Floyd E. GERKEN, Respondent and Cross Appellant, v. MUTUAL OF ENUMCLAW INSURANCE COMPANY, a Washington corporation, Appellant.
• Docket Number: 12709-5-III,Nos. 12533-5-II,s. 12533-5-II
• Decision Date: 12 May 1994

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74 Wn.App. 220 872 P.2d 1108 Floyd E. GERKEN, Respondent and Cross Appellant,
v.
MUTUAL OF ENUMCLAW INSURANCE COMPANY, a Washington
corporation, Appellant. Nos. 12533-5-III, 12709-5-III. Court of Appeals of Washington,
Division 3, Panel Four. May 12, 1994.

[872 P.2d 1110]

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Jeffory E. Adams, Ronald L. Unger, Murray, Dunham & Murray, Seattle, for appellant.

Dennis A. Dellwo, Meriwether D. Williams, Winston & Cashatt, Spokane, for respondent.

SWEENEY, Judge.

Floyd E. Gerken was injured when the vehicle he was driving skidded onto the shoulder of the road and overturned. At the scene of the accident, he told a state trooper he swerved off the road to avoid hitting an unidentified vehicle that veered sharply into his lane. Mutual of Enumclaw Insurance Company (MOE), which insured the vehicle, denied Mr. Gerken underinsured motorist coverage because he had not provided independent corroboration of the accident. Mr. Gerken brought a declaratory judgment action against MOE. On cross motions for summary judgment, the court ruled there was sufficient competent corroborating evidence to satisfy RCW 48.22.030(8)(a). The court granted summary judgment in favor of Mr. Gerken and awarded him attorney fees and costs. MOE appeals contending the evidence presented is not sufficient to corroborate the existence of a phantom vehicle. In a consolidated appeal, MOE contends the court erred in awarding Mr. Gerken fees and costs. We affirm the summary judgment and the award of attorney fees. We reverse the award of litigation costs.

I.

FACTUAL BACKGROUND

At about 3:30 p.m. on July 22, 1988, Mr. Gerken was driving a vehicle owned by Avil Gilkerson on Interstate 90 near Cle Elum. Mrs. Gilkerson, her daughter Susan Speer, and Mrs. Speer's three children were passengers. As they rounded a right-hand curve, Mr. Gerken turned the vehicle sharply to the right and applied the brakes. The vehicle left the roadway, struck an embankment and overturned. Mr. Gerken suffered serious injuries, including a back injury and

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the partial loss of his right ear. Mrs. Speer injured her neck and middle finger. Mrs. Gilkerson was treated and released.

Washington State Trooper Eric Hanson arrived at the accident scene in about 11 minutes. Mr. Gerken told him he had swerved to avoid hitting a blue or brown 1984 or 1985 Plymouth or Dodge station wagon which pulled in front of his vehicle and veered sharply into his lane. Trooper Hanson did not attempt to locate the "phantom" vehicle. His report indicated that the yaw marks left by Mr. Gerken's vehicle were consistent with an avoidance action.

[872 P.2d 1111] The MOE policy defined an uninsured motor vehicle as one "whose operator or owner cannot be identified and which was the direct cause of bodily injury to a covered person." If there was no physical contact with the phantom vehicle, the policy required "competent evidence as to the facts by a person who does not have a claim against this or any similar insurance as a result of this accident."

To corroborate the existence of the phantom vehicle, Mr. Gerken offered photographs of the yaw marks left at the scene of the accident and an affidavit of John Habberstad, an accident reconstruction expert. Mr. Habberstad concluded the vehicle left the road "as a result of the driver's effort to avoid collision with another object or thing by turning to the right and braking." ¹ Mr. Gerken also submitted affidavits of Mrs. Gilkerson and Mrs. Speer which stated that Mr. Gerken had swerved to avoid a collision with a light colored automobile. Both women executed waivers and released their underinsured motorist claims against MOE, Mr. Gerken and the unidentified driver.

MOE denied Mr. Gerken's claim on the basis he had not provided independent corroboration of the accident. Mr. Gerken

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sued and moved for summary judgment. In its cross motion for summary judgment, MOE submitted an affidavit of Larry Stadler, an accident reconstruction expert. Mr. Stadler could not determine the exact reason why Mr. Gerken's vehicle left the road, but offered several possible suggestions, including: defective front brakes, driver inattention, oversteering, attempt to avoid an object on the highway such as a rock or animal, a driver reaching for an object or trying to kill a bee inside the car, or if the driver was asleep or intoxicated. The court ruled that Mr. Gerken had corroborated the existence of a phantom vehicle by the photographs of the yaw marks and Mr. Habberstad's affidavit. The court further ruled that Mrs. Speer and Mrs. Gilkerson, who had both released their claims against MOE, Mr. Gerken and the unidentified driver, could corroborate Mr. Gerken's version of the accident. It entered summary judgment in favor of Mr. Gerken and awarded him attorney fees of $24,000, litigation costs of $1,298.34 and statutory costs of $272.41. This appeal follows. ²

II.

EVIDENCE TO CORROBORATE EXISTENCE OF PHANTOM VEHICLE

MOE maintains the court erred in granting summary judgment in favor of Mr. Gerken because the existence of the phantom vehicle has not been corroborated. MOE argues that (1) no logical conclusion can be drawn from the yaw marks; (2) Mr. Habberstad cannot conclude why Mr. Gerken swerved from the road; (3) Mrs. Speer and Mrs. Gilkerson have underinsured motorist claims and therefore are precluded from corroborating the accident; and (4) the affidavit of its expert, Mr. Stadler, indicates various reasons for a vehicle to leave the road, other than a phantom vehicle.

Standard of Review. On summary judgment we engage in the same inquiry as the trial court. Grimsrud v. State, 63 Wash.App. 546, 548, 821 P.2d 513 (1991); Kennedy v. Sea-Land Serv., Inc., 62 Wash.App. 839, 855, 816 P.2d 75 (1991).

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Summary judgment is appropriate if there is no genuine issue as to any material fact. Evidence must be considered in a light most favorable to the nonmoving party. Stephens v. Seattle, 62 Wash.App. 140, 143, 813 P.2d 608, review denied, 118 Wash.2d 1004, 822 P.2d 289 (1991).

[872 P.2d 1112] Interpretation or construction of an insurance contract is a question of law and may properly be determined on motion for summary judgment. American Star Ins. Co. v. Grice, 121 Wash.2d 869, 874, 854 P.2d 622 (1993).

Statutory Language. The MOE policy requires that in the absence of physical contact with the phantom vehicle, there must be "competent evidence as to the facts by a person who does not have a claim against this or any similar insurance as a result of this accident." The underinsured motorist (UIM) statute ³ is intended to provide broad protection against financially irresponsible motorists and is construed broadly to meet this legislative goal. Nationwide Ins. v. Williams, 71 Wash.App. 336, 341-42, 858 P.2d 516 (1993). RCW 48.22.030 is also intended to prevent fraudulent claims. Nationwide, at 342, 858 P.2d 516. It therefore requires "testimony from someone other than the claimant or anyone else who stands to benefit from proof of a 'phantom vehicle.' " Nationwide, at 342, 858 P.2d 516 (quoting Gobin v. Allstate Ins. Co., 54 Wash.App. 269, 273, 773 P.2d 131 (1989)).

Corroborating Evidence. In the context of RCW 48.22.030(8), corroborating evidence means " 'evidence that tends to strengthen or confirm the testimony of the insured ...' " and/or other claimants. Nationwide, 71 Wash.App. at 343, 858 P.2d 516; Powell v. Viking Ins. Co., 44 Wash.App. 495, 502, 722 P.2d 1343 (1986). Corroboration "is something which leads an impartial and

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reasonable mind to believe that material testimony is true, testimony of some substantial fact or circumstance independent of a statement of a witness." Farmers Ins. Exch. v. Colton, 264 Or. 210, 504 P.2d 1041, 1045 (1972). Corroborating evidence "must tend to verify the claimant's version of the facts." Colton, 504 P.2d at 1045.

The court here correctly concluded that Mr. Gerken had provided sufficient competent corroborating evidence to satisfy the requirements of RCW 48.22.030(8)(a). While each part of the evidence considered separately may not have been sufficient to satisfy the requirements of the statute, when taken as a whole it does.

Photographs of Yaw Marks. The investigating trooper, Trooper Hanson, confirmed that the photographs introduced in support of Mr. Gerken's motion accurately reflected the scene of the accident. It was his opinion that the yaw marks possibly demonstrated an avoidance maneuver reaction. Experts for both parties also relied on the photographs for their conclusions that the yaw marks showed an avoidance-type reaction. There is therefore substantial evidence that Mr. Gerken was engaged in an avoidance maneuver at the time of the accident.

MOE is correct that the photographs are not evidence of what was being avoided. The photographs, however,...