Gordinier v. Aetna Cas. & Sur. Co.

• Decision Date: 28 July 1987
• Docket Number: No. CV-86-0609-PR,CV-86-0609-PR
• Citation: 742 P.2d 277,154 Ariz. 266
• Parties: Tina Marie GORDINIER, a single woman, Plaintiff-Appellant, v. The AETNA CASUALTY & SURETY COMPANY, a foreign corporation, Defendant-Appellee. Tina Marie GORDINIER, a single woman, Plaintiff-Appellant, v. WESTERN AMERICAN INSURANCE AGENCY, an Arizona corporation; Vada Jean Gordinier and John Doe Gordinier, wife and husband, Defendants-Appellees.
• Court: Arizona Supreme Court

Page 277

742 P.2d 277

154 Ariz. 266

Tina Marie GORDINIER, a single woman, Plaintiff-Appellant, v. The AETNA CASUALTY & SURETY COMPANY, a foreign corporation, Defendant-Appellee.

Tina Marie GORDINIER, a single woman, Plaintiff-Appellant, v. WESTERN AMERICAN INSURANCE AGENCY, an Arizona corporation; Vada Jean Gordinier and John Doe Gordinier, wife and husband, Defendants-Appellees.

No. CV-86-0609-PR.

Supreme Court of Arizona.

July 28, 1987.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears by Larry

[154 Ariz. 267] L. Smith, Robert G. Beshears, Phoenix, for defendant-appellee The Aetna Cas. & Sur. Co

Jennings, Strouss & Salmon by Jefferson L. Lankford, M. Byron Lewis, William T. Birmingham, Phoenix, for defendants-appellees Western American Ins. Agency and Gordinier.

Frederick C. Creasy, Jr., Michael E. Kranitz, Scottsdale, for plaintiff-appellant.

FELDMAN, Vice Chief Justice.

Plaintiff, Tina Marie Gordinier (Tina), has petitioned us to review a court of appeals opinion affirming summary judgment in favor of defendants, Aetna Casualty & Surety Company (Aetna), Western American Insurance Agency (Western), and Vada Jean Gordinier (Jean). Gordinier v. Aetna Casualty & Surety Company, 154 Ariz. 262, 742 P.2d 273 (consolidated) (App.1986).

Aetna refused to pay uninsured motorist benefits to Tina when she was involved in an accident in an uninsured vehicle on the ground that she was not a "resident of the same household" as her husband, the named insured.

We granted review to clarify the scope of the doctrine of Darner Motor Sales, Inc. v. Universal Underwriters Insurance Co., 140 Ariz. 383, 682 P.2d 388 (1984). See Rule 23(c)(4), Ariz.R.Civ.App.P., 17A A.R.S. (Supp.1986). We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. § 12-120.24.

FACTS

The trial court granted summary judgment in favor of defendants. Therefore, we view the facts in the light most favorable to plaintiff. See Farmers Insurance Co. v. Vagnozzi, 138 Ariz. 443, 448, 675 P.2d 703, 708 (1983).

Tina and Shawn Gordinier were married in 1981. In February 1982, while they were living together on Utopia Road in Phoenix, they asked Shawn's mother, Jean, to help them purchase automobile insurance for their only vehicle, a 1976 Buick. Jean, at that time a clerical employee with Aetna, arranged for Tina and Shawn to buy car insurance from Aetna through the Leiby agency. The extent of Jean's participation in obtaining the insurance is unclear from the record. On the application form, Shawn is listed as the applicant, and both Shawn and Tina are listed as drivers. ¹ The application lists Shawn as ninety percent driver and Tina as ten percent driver of the Buick.

Tina and Shawn separated in August 1982 and left the home on Utopia Road. Shawn returned to his parents' home, while Tina and the couple's son, Max, moved into their own apartment. Shawn provided some financial support for Max, and told Tina that he would pay the premiums on the Aetna policy. From the date of the separation, Tina had nearly exclusive use of the insured Buick. When Shawn purchased a truck in May 1983, he asked his mother, who at that time was working at the Luhrs Insurance Agency, to help him add his truck to the Aetna coverage. Although aware that Tina and Shawn were no longer living together, Jean sent in the paperwork to amend the policy, apparently without notifying Aetna about the change in living arrangements. The record does not contain a copy of the 1983 policy, but the parties agree that Tina was listed as ninety percent driver of the Buick and ten percent driver of the truck. The policy described and covered both vehicles.

In depositions, Tina testified that both Shawn and Jean told her that she was fully covered by the policy. ² Jean denied ever In September 1983, when the policy came up for renewal, Jean was employed as a clerical employee at Western American. ³ Jean transferred the policy to that agency to monitor the premiums due and to pay them if Shawn did not. She actually paid the September 1983 premium.

[154 Ariz. 268] talking to Tina about her insurance coverage. Jean also testified that she never talked to Tina about the possibility that her insurance coverage would be jeopardized because she was no longer living with Shawn.

On January 8, 1984, sixteen months after Shawn and Tina had separated, Tina sustained serious injuries while riding as a passenger on an uninsured motorcycle owned and driven by a friend. At the time of the accident, Shawn and Tina still were living apart but had not filed for a legal separation or dissolution. Tina testified that she had not foreclosed the possibility of reconciling with Shawn. Shawn's mother also testified that she thought Shawn wanted a reconciliation. However, the couple never reconciled and eventually was divorced in June 1984.

After the accident, Tina filed a claim for uninsured motorist benefits with Aetna. Aetna denied the claim on the grounds that Tina was not a "covered person" for uninsured motorist coverage because she was not a named insured, was not a family member residing in the same household as Shawn at the time of the accident, and was not in a covered automobile.

After Aetna refused to pay uninsured motorist benefits, Tina sued the insurer for bad faith, breach of contract, fraud, breach of fiduciary duty, consumer fraud, deceptive advertising, intentional infliction of emotional distress, and violations of the state racketeering statute. She also sued Western and Jean for misrepresentation and bad faith, alleging that Jean had misrepresented that Tina had full coverage under the policy and had assisted in renewing the policy without change in September 1983, knowing that Tina and Shawn were living separately.

The trial court granted summary judgment in favor of Aetna, finding as a matter of law that Tina was neither a named insured nor a "resident of the same household" as Shawn. Without explanation, the court also granted summary judgment in favor of Western and Jean on the ground that there was no genuine issue of fact and they were entitled to judgment as a matter of law.

The court of appeals affirmed the grants of summary judgment. The court held that Aetna's requirement that a spouse be "a resident of the same household" to receive uninsured motorist coverage did not violate the statutory language or the policy of the Uninsured Motorist Act, A.R.S. § 20-259.01, and the Uniform Motor Vehicle Safety Responsibility Act, A.R.S. We accepted review to address the following issues:

                §§ 28-1101 to -1225.  154 Ariz. at 263-264, 742 P.2d at 274-275.   We declined to review this issue.  The court of appeals also held that Tina was not entitled to coverage based on the "reasonable expectations" doctrine of Darner because the phrase "resident of the same household" is unambiguous.  Id. 154 Ariz. at 265, 742 P.2d at 276.   In addition, the court disagreed that there was any disputed factual question whether Tina and Shawn were residents of the same household.  Id. 154 Ariz. at 265, 742 P.2d at 276.   The court affirmed the grant of summary judgment in favor of Western and Jean on the basis that Jean had no authority to act as an insurance agent.  Id., 154 Ariz. at 265, 742 P.2d at 276
                

1. Did the trial court err in holding as a matter of law that under the Aetna policy Tina did not have reasonable expectations of receiving uninsured motorist benefits?

2. Did the trial court err in holding as a matter of law that Tina was not a "resident of the same household" as Shawn?

3. Did the trial court err in granting summary judgment for Western and Jean Gordinier?

I. REASONABLE EXPECTATIONS

A. Policy Provisions

The trial court held that although the policy was in force at the time of Tina's accident, she was not covered under the uninsured motorist provisions for an accident that occurred while she was riding on a friend's uninsured vehicle. Aetna concedes that had Shawn been injured in an identical accident, he could have received policy benefits under both the uninsured motorist and medical pay provisions. Tina, however, would only have been covered had she been in an accident while occupying the Buick or the truck. The disparate treatment of Shawn and Tina is reached under the following policy provisions. The 12-page policy provided in part (c) on page six:

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: (1) sustained by a covered person; and (2) caused by an accident....

Thus, Tina could recover uninsured motorist benefits only if she were a "covered person." Part (c) continued:

"Covered person" as used in this part means: (1) you or any family member. (2) any other person occupying your covered auto.

Because Tina was not in the "covered auto" at the time she was hurt, she could recover uninsured motorist benefits as a covered person only if she was a "you" or a "family member" of a "you." The definitions section on page one of the policy, however, limited the common meaning of these terms. ⁴ "Throughout this policy," "you" means either "the named insured" shown on the declarations page or "the spouse [of the named insured] if a resident of the same household." The declarations page listed Tina as a driver, but only Shawn as the "named insured." Thus, Tina qualified as a "covered person" under the rubric of "you" only while she lived in "the same household" as Shawn.

Page six of the policy also indicated that Tina might qualify as a "covered person" for uninsured motorist coverage as a "family member." Again, resort to the definitions section on page one would have revealed that "family member means a person related to you ... who is a resident of your household." Bearing in mind that "you" only applied to Tina when residing in In short, although uninsured motorist coverage is available for "covered persons," in a rather complicated way "covered...