Grange Insurance Association v. Evans, No. 29541-5-II (Wash. App. 1/21/2004)
| Decision Date | 21 January 2004 |
| Docket Number | No. 29541-5-II,29541-5-II |
| Court | Washington Court of Appeals |
| Parties | GRANGE INSURANCE ASSOCIATION, Respondent, v. RUBY A. EVANS, individually, SHERRY APPLE, the parent/guardian of Shelby Apple, WILLIAM J. APPLE, the parent/guardian of Shelby Apple, SHELBY APPLE, a minor, Appellants, MARY EVANS, individually, Defendant. |
Appeal from Superior Court of Thurston County. Docket No. 02-2-00157-0. Judgment or order under review. Date filed: 10/11/2002.
Counsel for Appellant(s), Martin David Meyer, Attorney at Law, 402 Capitol Way S Ste 12, Olympia, WA 98501-1096.
Harold D. Carr, Attorney at Law, 4535 Lacey Blvd SE, Lacey, WA 98503-5718.
Philip Albert Talmadge, Talmadge & Stockmeyer, 18010 Southcenter Pkwy, Tukwila, WA 98188-4630
Candiss Anne Watson, Talmadge & Stockmeyer PLLC, 18010 Southcenter Pkwy, Tukwila, WA 98188-4630.
Counsel for Respondent(s), Pamela A. Okano, Reed McClure, 601 Union St Ste 4901, Seattle, WA 98101-3920.
Ruby Evans, Shelby Apple, and Shelby's parents, Sherry and William Apple, (collectively `Appellants'1) appeal the trial court's grant of summary judgment to Grange Insurance Association. Appellants argue that the trial court erred (1) in ruling that Grange had no duty to defend or to indemnify Evans for Shelby's injuries in an all-terrain vehicle accident on Evans' property because the insurance policy excluded coverage for injuries arising out of motor vehicle accidents; and (2) in declining to apply the efficient proximate cause rule. Holding that the `arising out of' policy language excluded coverage for Shelby's injuries, we affirm.
Seven-year-old Shelby Apple was seriously injured while riding an all-terrain vehicle or `quad'2 on Ruby Evans' neighboring farm. Clerk's Papers (CP) at 312. Eleven-year-old Karly Stewart drove the quad with passengers Shelby on the back and another girl, Jessy, in the middle. After a brief stop, Karly restarted the quad, which reversed quickly.3 The quad flipped over, threw Shelby onto some nearby bushes, and then landed on top of her. Shelby was pinned under the quad for 15 minutes without pulse or respiration. She suffered brain damage and serious injury to her spine and internal organs. She now requires constant care.
Shelby made a damages demand on Ruby Evans and Grange, offering to settle for Ruby's homeowner's insurance policy limits. Grange sought declaratory relief against Appellants and the quad's owner, Mary Evans,4 asking the superior court to determine the parties' rights and liabilities. Shelby's parents, Sherry and William Apple, then sued Ruby Evans for negligent supervision of Shelby.5 The parties filed cross-motions for summary judgment.
Both Grange and Ruby Evans filed motions for summary judgment in the declaratory judgment action. The trial court granted summary judgment to Grange, ruling that Ruby Evans' homeowner's policy did not cover medical payments and included no duty to defend or to indemnify Evans for claims arising out of motor vehicle accidents on her property. The trial court reasoned that Evans had no reasonable expectation of coverage because `there is no question' the injuries resulted from the use of the motor vehicle an excluded act under the insurance policy. CP at 513. Finding no genuine issue of material fact, the trial court also denied Evans' cross-motion for summary judgment.
Ruby Evans and the Apples appeal.
Summary judgment is proper in an insurance coverage case where `(1) there is no dispute about the facts, and (2) coverage depends solely on the language of the insurance policy.' Stouffer & Knight v. Cont'l Cas. Co., 96 Wn. App. 741, 747, 982 P.2d 105 (1999), review denied, 139 Wn.2d 1018. Interpretation of an insurance policy is a question of law, which we review de novo. Roller v. Stonewall Ins. Co., 115 Wn.2d 679, 682, 801 P.2d 207 (1990).
We give an insurance policy `a fair, reasonable, and sensible construction, in a manner consistent with the way that the average person purchasing insurance would understand the policy language.' Stouffer, 96 Wn. App. at 747. Further, the policy "should not be given a strained or forced construction which would lead to an extension or restriction of the policy beyond what is fairly within its terms." E-Z Loader Boat Trailers Inc. v. Travelers Indem. Co., 106 Wn.2d 901, 907, 726 P.2d 439 (1986) (quoting Morgan v. Prudential Ins. Co. of Am., 86 Wn.2d 432, 434, 545 P.2d 1193 (1976)). We construe "{e}xclusionary clauses contained in insurance policies . . . strictly . . . against the insurer." Stouffer, 96 Wn. App. at 747 (quoting Allstate Ins. Co. v. Raynor, 93 Wn. App. 484, 492, 969 P.2d 510, 975 P.2d 517 (1999)).
The `Liability Coverages' section of Evans' homeowner's insurance policy provides:
COVERAGE E — Personal Liability
If a claim is made or a suit is brought against an insured for damages because of bodily injury or property damage caused by an occurrence to which this coverage applies, {Grange} will:
. . . .
2. provide a defense at our expense . . . .
{Grange} will pay the necessary medical expenses that are incurred or medically ascertained within three years from the date of an accident causing bodily injury{:} . . .
1. to a person on the insured location with the permission of an insured.
App. Br. at app. A-14 (emphasis added).
The `Exclusions' section of the policy provides:
1. Coverage E — Personal Liability and Coverage F — Medical Payments to Others do not apply to bodily injury or property damage:
. . . .
e. arising out of:
(1) the ownership, maintenance, use, loading or unloading of motor vehicles or all other motorized land conveyances, including trailers, owned or operated by or rented or loaned to an insured;
(2) the entrustment by an insured of a motor vehicle or any other motorized land conveyance to any person;
App. Br. at app. A-15 (emphasis added).
Appellants argue that the question of what caused Shelby's injuries must be submitted to a fact finder before the court can consider the exclusionary clause. We disagree.
The quad was clearly a `motor vehicle' under the insurance policy because it was subject to licensing requirements6 and was not designed or used solely for recreational purposes. CP at 122-23, 132.
The policy explicitly excludes coverage for bodily injury `arising out of' use of a motor vehicle; this exclusion is unambiguous.7 When the language of an insurance policy is unambiguous, we enforce the clear language of the policy; we may not modify it or create ambiguity where none exists. Allstate Ins. Co. v. Peasley, 131 Wn.2d 420, 424, 932 P.2d 1244 (1997). Shelby's tragic injuries arose directly out of her riding on the quad, which flipped over on top of her.
Division One has expressly held that the efficient proximate cause analysis, which the Appellants advance here, does not apply where an insurance policy's exclusionary clause uses the phrase `arising out of' to describe the excluded act. In Toll Bridge Authority v. Aetna Insurance Co., 54 Wn. App. 400, 407, 773 P.2d 906 (1989), the court held that "{a}rising out of' and `proximate cause' describe two different concepts' and that no determination of proximate cause is necessary when an exclusionary clause uses `arising out of.'8
Ten years later, in Stouffer, we adopted this Toll Bridge reasoning. Stouffer, 96 Wn. App. at 750 n.11. We recognized that (1) although the insured's loss `also arguably arose out of his own negligent failure to supervise {this} does not change the fact that the exclusionary clause precludes coverage,' Stouffer, 96 Wn. App. at 750 n.11; and (2) `an exclusionary clause can preclude coverage, not only for the intentional acts directly leading to the losses at issue, but also for the negligence that perhaps facilitated the occurrence of those acts.'9 Stouffer, 96 Wn. App. at 750 n.12. Similarly here, even construing the policy language strictly against Grange,10 the exclusionary clause precludes a proximate cause analysis of whether Ruby's negligence facilitated the girls' quad accident.11
Appellants also argue that the phrase `caused by' in the coverage section of the policy is ambiguous, precluding summary judgment. App. Br. at 22-23. They advance two interpretations of the phrase that Shelby's injuries were `caused by' either Ruby's negligent supervision or using the quad. App. Br. at 22. But we need not address this argument because the `arising out of . . . use {of a} motor vehicle{}' language in the exclusionary portion of the policy precludes any causation analysis. App. Br. at app. A-15. See Toll Bridge, 54 Wn. App. 400. Consequently, any ambiguity in the phrase `caused by' would be irrelevant.
Appellants' argument that a jury should determine proximate cause is similarly irrelevant. On the contrary, summary judgment is appropriate here because `the facts are undisputed and the inferences therefrom are plain and incapable of reasonable doubt or difference of opinion that it may be a question of law for the court.' Graham v. Pub. Employees Mut. Ins. Co., 98 Wn.2d 533, 539, 656 P.2d 1077 (1983). Accordingly, we do not reach Appellants' efficient proximate cause argument that Ruby Evans' allegedly negligent supervision of Shelby Apple was the proximate cause of Shelby's injuries.12
Because she is not the prevailing party, we deny Ruby Evans' request for attorney fees. See, e.g., Diamaco, Inc. v. Aetna Cas. & Sur. Co., 97 Wn. App. 335, 344, 983 P.2d 707 (1999) (citing Olympic S.S. Co. v. Centennial Ins. Co., 117 Wn.2d 37, 53, 811 P.2d 673 (1991)), review denied, 140 Wn.2d 1013 (2000).
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be...
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