Gingrich v. Unigard Sec. Ins. Co.

• Decision Date: 29 March 1990
• Docket Number: Nos. 9640-8-II,9861-3-III,s. 9640-8-II
• Parties: Leslie C. GINGRICH, Jr. and Darlene Gingrich, husband and wife, Plaintiffs, and Leslie C. Gingrich, III, Respondent and Cross Appellant v. UNIGARD SECURITY INSURANCE COMPANY, Appellant.
• Court: Washington Court of Appeals

Page 424

57 Wn.App. 424

788 P.2d 1096

Leslie C. GINGRICH, Jr. and Darlene Gingrich, husband and wife, Plaintiffs and Leslie C. Gingrich, III, Respondent and Cross Appellant v. UNIGARD SECURITY INSURANCE COMPANY, Appellant.

Nos. 9640-8-III, 9861-3-III.

Court of Appeals of Washington Division 3, Panel Four.

March 29, 1990.

Karen Weaver, Unigard Ins. Group, Bellevue, for appellant.

Blaine Gibson, Dohn, Talbott, Simpson Law Firm, Yakima, Daniel Peterson, Sunnyside, for respondent and cross appellant.

THOMPSON, Judge.

Unigard Security Insurance Company appeals summary judgment orders and a judgment requiring it to provide coverage to Leslie C. Gingrich III (Leslie III) under his parents' insurance policy. Leslie III cross-appeals the dismissal of his bad faith claim under the Consumer Protection Act, RCW 19.86. We affirm.

Leslie III was injured on September 13, 1987, as he was driving a 1965 Chevrolet pickup truck. Two days before the accident, Leslie III's father, Leslie C. Gingrich, Jr., had transferred title to the pickup to Leslie III, who lived with his parents on a farm near Sunnyside, Washington. Provisions of Unigard's insurance policy issued to Leslie III's parents excluded coverage for vehicles not owned by the named insured. Unigard has denied coverage on the basis that Leslie III was the owner of the vehicle at the time of the accident. ¹

The Gingriches always maintained strict limits on use of their vehicles by their seven children. This rule of "self-preservation", as Darlene Gingrich called it, was especially pertinent in the case of 21-year-old Leslie III, her youngest child. Leslie III had a terrible driving record. First licensed to drive in 1983, he was involved in three accidents in as many years, one of which resulted in a negligent driving citation and license suspension. He had more speeding tickets than he could remember.

When the Gingriches first obtained the Unigard policy in 1985, Leslie III was not living with them. He moved frequently between his parents' home and the homes of other relatives in Western Washington. At the time of the accident here, Leslie III was living with his parents and working at a job in Sunnyside. Although his license had been reinstated in July 1987, he had no vehicle and his mother was driving him to and from work in her car.

The family at that time was under a great deal of stress. Mrs. Gingrich's daughter had been diagnosed as having cancer, and Leslie, Jr.'s job was uncertain. The Gingriches were unable to continue payments on the farm, and had decided to return it to the former owners. ² Mrs. Gingrich's brother was scheduled for triple bypass heart surgery on September 14, 1987. She and Leslie, Jr., decided to drive to California to be with her brother.

Before leaving on the emergency trip, the Gingriches decided to transfer title to the pickup truck to Leslie III. Both parents and Leslie III said the reason for the transfer was so that Leslie III would have transportation to and from his job. Mrs. Gingrich explained:

We wanted to make sure that if we were killed on that trip, which was entirely possible, that Leslie [III] would be protected, and that the law wouldn't come in and tie up everything and leave him on foot with nothing and no way to get to work.

Leslie III offered a similar explanation. His father testified:

A ... I have always been told that if the vehicle was in another person's name then you are no longer held responsible.

....

Q So it's my understanding that you did not want to be responsible for your son's use of the vehicle while you were gone; is that right?

A Right.

Leslie III did not pay for the truck, and it was understood he would transfer the title back to his parents when they returned.

The Gingriches left for California on September 12. The accident happened early the next morning. On her return from California, Mrs. Gingrich reported the accident to Unigard and asked the company to delete the pickup from the policy, because it was a total loss. Unigard refunded the portion of the premium for the period from September 13 ³ to the expiration of the policy, October 8, 1987.

Unigard denied coverage on the basis that the pickup was not owned by a named insured at the time of the accident. The claims manager found it unimportant that Leslie III had not paid for the vehicle, "since ownership can be obtained by gift".

The Gingriches ⁴ initiated this action for declaratory judgment and damages for alleged violation of the Consumer Protection Act, RCW 19.86. The court denied Unigard's motion for summary judgment on the coverage issue, but granted its motion on the consumer protection issue. The court then granted summary judgment against Unigard, ordering it to provide coverage. While these orders were being appealed, the trial court granted summary judgment against Unigard on the issue of personal injury protection (PIP) coverage, and entered a judgment against Unigard for PIP benefits. The appeal of this order and judgment has been consolidated with the earlier appeal.

The first issue is whether Unigard has raised a genuine issue of material fact so as to avoid summary judgment. Summary judgment is appropriate

if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

CR 56(c). On review of a summary judgment order, the court takes the position of the trial court, and assumes facts most favorable to the nonmoving party. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982); Yakima Fruit & Cold Storage Co. v. Central Heating & Plumbing Co., 81 Wash.2d 528, 530, 503 P.2d 108 (1972). The burden is on the moving party to show there is no genuine issue as to a fact that could influence the outcome at trial. Jacobsen v. State, 89 Wash.2d 104, 108, 569 P.2d 1152 (1977). Summary judgment should not be granted when the credibility of a material witness is at issue. Balise v. Underwood, 62 Wash.2d 195, 200, 381 P.2d 966 (1963); Powell v. Viking Ins. Co., 44 Wash.App. 495, 503, 722 P.2d 1343 (1986). Summary judgment also may not be appropriate when material facts are particularly within the knowledge of the moving party. Felsman v. Kessler, 2 Wash.App. 493, 496-97, 468 P.2d 691, review denied, 78 Wash.2d 994 (1970).

Here, Unigard argues, the trial court relied on the averred fact the Gingriches intended that Leslie III would retransfer title to the truck back to them when they returned from California. Unigard contends the evidence presents a genuine dispute. It points to the deposition testimony of Mrs. Gingrich, who said the family was planning to move from the farm to Yakima, and she did not know what use they would have had for the pickup truck. Unigard contends this testimony raises an inference the Gingriches had no further use for the truck, that they planned to give it to Leslie III permanently after their move to Yakima, and that the sudden trip to California merely precipitated the transfer. No other evidence supports Unigard's argument. In fact, Leslie, Jr., testified in his deposition that, after the move to Yakima, he would have used the pickup for hunting trips or for hauling wood or other items.

Unigard's speculative argument has only the barest of support in the record. Although the evidence of intent is exclusively within the knowledge of the Gingriches, Unigard's attorney had a full opportunity to cross-examine them during their depositions. See Felsman, at 497, 468 P.2d 691, 4 L. Orland, Wash.Prac., Rules Practice § 5658, at 427-28 (3d ed. 1983).

Moreover, Unigard points to nothing in the record that contradicts the Gingriches' testimony. Cases on which Unigard relies are distinguishable on this point. In Balise, 62 Wash.2d at 200, 381 P.2d 966, for example, the witness' credibility was drawn into question by his abandonment of his worker's compensation claim, as well as by testimony inferring he feared losing his job. In Hudesman v. Foley, 73 Wash.2d 880, 890, 441 P.2d 532 (1968), the nonmoving party's "countervailing affidavits" presented contradictory evidence. The affidavit in IFELSMAN, Wash.App. at 498, 468 P.2d 691, was contradicted by a transcript of a coroner's inquest, as well as another affidavit. And in Powell, 44 Wash.App. at 503, 722 P.2d 1343, the witness' affidavit contradicted her original statement to the insurance investigator. Nothing in the record contradicts the Gingriches' repeated assertions that the title transfer was to be temporary. A summary judgment opponent "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Based on the record before it, the trial court properly treated the fact the title transfer was temporary as beyond legitimate dispute.

Next, we address the issue whether the title transfer changed "ownership" of the vehicle. Unigard contends the concept of ownership is clear and unambiguous, and urges the court to give the policy language its plain, ordinary and popular meaning. Toll Bridge Authority v. Aetna Ins. Co., 54 Wash.App. 400, 407, 773 P.2d 906 (1989). The average person equates vehicle ownership with vehicle title, Unigard argues, and the Gingriches' title transfer also transferred ownership. Mr. Gingrich argues, conversely, that ownership is ambiguous, and the language must be construed in favor of the insured. Farmers Ins. Co. v. U.S.F. & G. Co., 13 Wash.App. 836, 841, 537 P.2d 839 (1975).

Although Farmers did hold the word "owner" is ambiguous, ⁵ neither argument incorporates the approach of more recent Washington cases which view the matter as an issue of law. The intent of the insurance contract is to be determined from the language viewed in context with the factual circumstances. Se...