Girtz v. New Hampshire Ins. Co.
| Decision Date | 28 April 1992 |
| Docket Number | No. 11315-9-III,11315-9-III |
| Citation | 65 Wn.App. 419,828 P.2d 90 |
| Parties | Patrick GIRTZ and Sue Girtz, husband and wife, Appellants, v. NEW HAMPSHIRE INSURANCE COMPANY, a corporation, Respondent. |
| Court | Washington Court of Appeals |
W. Russell Van Camp, Dustin D. Deissner, Van Camp & Bennion, Spokane, for appellants.
Tim M. Higgins, Beverly L. Anderson, Winston & Cashatt, Spokane, for respondent.
Patrick and Sue Girtz were awarded damages in a personal injury suit arising from an automobile accident. After the judgment was satisfied, Mr. and Ms. Girtz sued their insurer, New Hampshire Insurance Company, seeking additional compensation under their underinsured motorist (UIM) coverage. New Hampshire's motion for summary judgment of dismissal was granted. Mr. and Ms. Girtz appeal, contending the New Hampshire policy providing UIM coverage is an ambiguous contract. We affirm.
On September 5, 1986, Mr. Girtz was driving an automobile owned by his employer, Sutherland Motors, Ltd. The automobile was insured by a New Hampshire policy which included UIM coverage with $500,000 limits. An automobile driven by Bonnie Rice struck Mr. Girtz's automobile. Ms. Rice was insured by an automobile liability policy with $300,000 limits. The Girtzes sued Ms. Rice for their personal injuries. The jury verdict awarded them $225,000. The judgment on that verdict was satisfied November 13, 1987. On July 5, 1989, Mr. and Ms. Girtz brought this declaratory judgment action seeking to recover UIM benefits under the New Hampshire policy. They alleged their injuries were far in excess of the sums awarded in the Rice verdict and they had "elected not to appeal as they could not afford to wait out the appeal process before receiving any compensation." New Hampshire's motion for summary judgment of dismissal was granted.
In reviewing a summary judgment we engage in the same inquiry as the trial court. There being no issues of fact, the issue is whether the moving party is entitled to judgment as a matter of law. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982).
Mr. and Ms. Girtz contend they are not collaterally estopped by their recovery against Ms. Rice because the New Hampshire policy is ambiguous and the recovery they seek under the policy is an action in contract, not tort.
The consent to suit clause, which is entitled "WE WILL PAY", states: "Any judgments for damages arising out of a suit brought without our written consent is not binding on us." Mr. and Ms. Girtz contend that clause applies both to them and to New Hampshire. Thus, they argue the judgments they obtained are not binding on them in this action to recover UIM benefits from New Hampshire. New Hampshire did not and does not now rely on the consent to suit clause in its defense.
Terms in an insurance policy are given their common and ordinary meaning as understood by an average purchaser of insurance. Sperry v. Maki, 48 Wash.App. 599, 601-02, 740 P.2d 342, review denied, 109 Wash.2d 1014 (1987). Taken together, the words "we," "our" and "us" in the consent to suit clause refer to the insurance company, not to the insured. No average purchaser would understand otherwise. There is no ambiguity; the argument is without merit.
Next, Mr. and Ms. Girtz contend the policy is ambiguous because it uses the words, "legally entitled to recover as damages caused by the accident", and RCW 48.22.030 1 does not contain the words "as damages caused by the accident." They argue the words in the policy increase the scope of damages beyond those established by the underlying lawsuit.
The words in the policy, "as damages caused by the accident", are the equivalent of the words "applicable to a covered person after an accident" in RCW 48.22.030(1). When read in context, the statute and the policy have the same meaning. There is no ambiguity; the argument is without merit.
Finally, Mr. and Ms. Girtz argue their claim against New Hampshire is in contract, and is not precluded by the claim in tort against Ms. Rice. The difference in legal basis between the actions is not relevant because any damages in the contract action are controlled by the damages awarded in the tort action; the argument is without merit.
The doctrine of collateral estoppel applies to preclude a different cause of action involving the same issue previously litigated in another action. The criteria for its application are:
(1) that...
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