Hawaiian Ins. & Guaranty Co., Ltd. v. Federated Am. Ins. Co., 2508--I

• Decision Date: 24 March 1975
• Docket Number: No. 2508--I,2508--I
• Citation: 13 Wn.App. 7,93 A.L.R.3d 407,534 P.2d 48
• Court: Washington Court of Appeals
• Parties: , 93 A.L.R.3d 407 HAWAIIAN INSURANCE & GUARANTY COMPANY, LIMITED, Appellant, v. FEDERATED AMERICAN INSURANCE COMPANY, a corporation, et al., Respondents.

Page 7

13 Wn.App. 7

534 P.2d 48, 93 A.L.R.3d 407

HAWAIIAN INSURANCE & GUARANTY COMPANY, LIMITED, Appellant, v. FEDERATED AMERICAN INSURANCE COMPANY, a corporation, et al Respondents.

No. 2508--I.

Court of Appeals of Washington, Division 1.

March 24, 1975.

Lycette, Diamond & Sylvester, Edwin J. Snook, John T. Petrie, Seattle, for appellant.

Murray, Dunham & Waitt, Wayne Murray, Seattle, for respondents.

CALLOW, Judge.

Hawaiian Insurance and Guaranty Company, plaintiff, appeals from a declaratory judgment holding that the insurance policy issued by Federated American Insurance Company, defendant, to Michael J. Smith does not afford insurance coverage to Michael Smith and Maria C. Smith, who was then his wife, for damages arising out of a collision between an automobile driven by Maria Smith and one driven by Florence Thompson. The trial court held that Maria Smith, at the time of the accident on October 18, 1971, was not a 'resident of the same household' as her husband within the meaning of their Federated American policy.

Maria Smith was driving a stationwagon owned by her father, Leon Gutierrez at the time of the accident. Mr. Gutierrez was uninsured. Florence Thompson demanded arbitration before the American Arbitration Association under the uninsured motorist provisions of her insurance policy. The plaintiff, Hawaiian Insurance, insurer of Florence Thompson, commenced action and stayed the arbitration proceedings pending the determination of this declaratory judgment action claiming that Maria Smith was insured through the policy issued by Federated American with Michael J. Smith as the named insured. Federated American, as a defendant in the action brought by Hawiian Insurance, denied that its policy of insurance covered Maria Smith when the accident occurred.

Michael and Maria Smith were married in 1970. After approximately one year, they separated due to marital difficulties. The findings of the trial court set forth the situation upon which it was concluded that Maria Smith was not a resident of the same household as Michael Smith. Those findings state in part:

V.

That the FEDERATED AMERICAN INSURANCE COMPANY had issued to MICHAEL J. SMITH as the named insured, its policy No. AC 92385 with a policy period from June 8, 1971 to June 8, 1972, insuring the described vehicle as a 1966 Oldsmobile Cutlass automobile for liability and property damage . . .

VI.

That under the terms and conditions of the policy issued by the defendant, FEDERATED AMERICAN INSURANCE COMPANY, it was provided as follows:

'III Definition of Insured. (a) With respect to the insurance for bodily injury liability and for property damage liability the unqualified word 'insured' includes the named insured and, if the named insured is an individual, his spouse if a resident of the same household, and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or such spouse or with the permission of either.'

'V. Use of Other Automobiles. If the named insured is an individual or husband and wife and if during the policy period such named insured, or the spouse of such individual if a resident of the same household, owns a private passenger automobile covered by this policy, such insurance as is afforded by this policy under coverages A, B, division 1 of coverage C with respect to said automobile applies with respect to any other automobile, subject to the following provisions:

'(a) With respect to the insurance for bodily injury liability and for property damage liability the unqualified word 'insured' includes (1) such named insured or spouse, . . .

'(b) Under division 1 of coverage C, this insurance applies only if the injury results from the operation of such other automobile by such named insured or spouse . . .'

VIII.

That MICHAEL J. SMITH and MARIA C. SMITH lived as husband and wife at the Kent-10 Apartments in Kent, Washington, up to the latter part of August or the first part of September of 1971. At that time, because of marital problems, they separated. MICHAEL J. SMITH moved to 10433 Kent-Kangley Road, Kent, Washington, from the family apartment taking with him the Oldsmobile automobile insured by FEDERATED AMERICAN INSURANCE COMPANY. He resided in that apartment with his brother. MARIA C. SMITH moved from the family apartment taking her two children and all of her personal effects and the personal effects of the children and moved in with her parents, Mr. and Mrs. Leon Gutierrez, at 10537 S.E. 229th Place, Kent, Washington. At the time of separation there was no definite time set for her return to Michael, her husband. She resided with her parents for approximately three weeks and then she moved into an apartment at 9229 South 244th Street, Kent, Washington, where she lived with her two children and roommates Kathy Vaughn and Jackie Berkiery until on or about October 29, 1971. On that date she was reconciled with her husband, MICHAEL C. SMITH, and then moved in with him in the apartment at 10433 Kent-Kangley Road, where he had resided with his brother. They lived as husband and wife until October 4, 1972, when they were again separated and ultimately divorced.

IX.

MARIA C. SMITH, after separating from her husband, enrolled in the Green River College, giving her address as 9229 South 244th Street, Kent, Washington. She was also employed and gave to her employer the aforementioned address.

X.

MARIA C. SMITH, at the time of the accident, was driving her parents' automobile. She, during the period of time she was separated, had driven that automobile approximately twenty times for her own personal use and to attend school, although on each occasion she had to ask permission to use said automobile, and on several occasions she was refused the use of the automobile as her mother intended to use the same.

XI.

That at the time MICHAEL J. SMITH and MARIA C. SMITH separated because of marital problems there was no agreement to return and live together again as husband and wife. Both were working and essentially independent.

The assignments of error challenge the findings of fact of the trial court, the failure to enter a proposed finding and the court's conclusions that Maria Smith was not a resident of the same household as the insured Michael Smith at the time of the accident and, therefore, coverage was not provided under the Federated American policy.

The findings of fact of a trial court are accepted as verities on appeal if there is substantial evidence to support them. Hays Merchandise, Inc. v. Dewey, 78 Wash.2d 343, 474 P.2d 270 (1970); Enterprise Timber, Inc. v. Washington Title Ins. Co., 76 Wash.2d 479, 457 P.2d 600 (1969). If findings of fact are actually conclusions of law, they will be interpreted as such. State v. Reader's Digest Ass'n, Inc., 81 Wash.2d 259, 501 P.2d 290 (1972); Hanson v. Lee, 3 Wash.App. 461, 476 P.2d 550 (1970); State v. Dorrough, 2 Wash.App. 820, 470 P.2d 230 (1970). The oral opinion of a trial court may be used to interpret the trial court's findings of fact if the findings make no statement concerning the subject or are ambiguous or vague. Bennett Veneer Factors, Inc. v. Brewer, 73 Wash.2d 849, 441 P.2d 128 (1968). Howmerged into the trial court's findings and the findings control where a discrepancy ever, the oral decision of the trial court is between the two is present. State v. Johnson, 12 Wash.App. 40, 527 P.2d 1324 (1974); Diel v. Beekman, 7 Wash.App. 139, 499 P.2d 37 (1972); Miller v. Jarman, 2 Wash.App. 994, 471 P.2d 704 (1970). The evidence supports the findings, insofar as they go, concerning the activities and intentions of Mr. and Mrs. Smith. Albeit, with the foregoing rules of interpretation in mind, the trial court's statement in its oral decision that when the parties separated 'they didn't conclude then that they were going to have a divorce or anything else' does cast additional light upon the intentions of the parties when they separated and at the time of the accident. The findings of fact are not in conflict with this observation, and it is of primary import in ascertaining the actual and governing intent of the parties at the essential times mentioned. We turn to a consideration of the conclusions reached upon the formal findings as augmented by the oral decision.

There has been a plethora of cases which have discussed the interpretation of the phrase 'resident of the same household' as set forth in insurance policies. Many of these cases deal with whether or not the child of the insured away in college or in the armed services is a resident of the same household and whether the circumstances of certain living arrangements make one a member of the same household or independent of that household. ¹ The issue presented is under what circumstances does a spouse who has separated from a named insured and who is not living under the same roof remain a resident of the insured's household.

In Collins v. Northwest Cas. Co., 180 Wash. 347, 352, 39 P.2d 986, 989, 97 A.L.R. 1235 (1935), the definition of the term 'household' is discussed as follows:

The word 'household' is defined by the dictionaries and the courts as the members of a house collectively; a domestic establishment; .. . The word has been considered as synonymous with the word 'family.' The word 'family' is defined by Webster to be: 'The body of persons who live in one house, and under one head or manager.' While in a restricted sense the word 'family' may be used interchangeably with 'household,' there is a difference in the ideas suggested by the two words. The word 'family' conveys the notion of some relationship, blood or otherwise. . . .

On the other hand, the word 'household' is definite in its application. If we speak of the 'Adams family,' we may have reference to the immediate domestic circle of a particular person by that name, or we may mean all persons of the blood...