Heringlake v. State Farm Fire and Cas. Co., Inc.

Decision Date11 May 1994
Docket NumberNos. 16587-2-I,16628-3-II and 15493-5-II,s. 16587-2-I
CourtWashington Court of Appeals
PartiesSteve HERINGLAKE and Tracy Heringlake, individually, and as Guardian for Kyle Heringlake, a minor, Respondent, v. STATE FARM FIRE AND CASUALTY COMPANY, INC., an Illinois corporation, Appellant. VIKING INSURANCE COMPANY OF WISCONSIN, Respondent, v. Anthony L. CLARK and Jane Doe Clark, and their marital community, and Steve Heringlake and Tracy Heringlake, individually and as Guardians of Kyle Heringlake, a minor, Appellant.

William R. Hickman, Pamela A. Okano, and Reed McClure, Seattle, Fred D. Gentry, Bean & Gentry, Olympia, for appellant in Nos. 16587-2-II and 16628-3-II.

Daniel R. Kyler, Rush, Hannula & Harkins, Tacoma, for respondent in Nos. 16587-2-II and 16628-3-II.

F. Mike Shaffer, Gordon, Thomas, Honeywell, Malanca, Peterson & Daheim, Tacoma, for appellant in No. 15493-5.

Jerret E. Sale, Bullivant, Houser, Bailey, Pendergrass & Hoffman, Seattle, for respondent in No. 15493-5-II.


Steve and Tracy Heringlake appeal an order of the Thurston County Superior Court granting a summary judgment to Viking Insurance Company of Wisconsin (Viking). The trial court declared that Anthony L Clark's insurance policy with Viking did not provide liability coverage, personal injury protection (PIP) coverage, or medical expense coverage for claims arising out of injuries the Heringlakes' son, Kyle, sustained as a result of being bitten by Clark's dog in the open bed of Clark's parked pickup truck. The Heringlakes also appeal the trial court's denial of their request for an award of attorney fees. We affirm.

In a separate appeal, 1 State Farm Fire and Casualty Company (State Farm) appeals the Pierce County Superior Court's grant of a summary judgment to Steve and Tracy Heringlake. The trial court declared in that case that the Heringlakes' insurance policy with State Farm provided underinsured/uninsured motorist (UIM) coverage and PIP coverage for Kyle Heringlake's injuries sustained as a result of the dog bite. State Farm also appeals the trial court's award of attorney fees to the Heringlakes. We reverse.


In the late afternoon of August 7, 1990, Anthony Clark was performing work on Tracy Heringlake's car, which was parked near the Heringlakes' apartment in Olympia. Clark had driven to the Heringlakes' in his pickup truck, which he parked near the Heringlakes' car. Luke, Clark's large German shepherd dog, accompanied Clark to the Heringlakes, riding in the bed of the pickup truck.

After Clark arrived, Kyle Heringlake, Steve and Tracy Heringlake's 2-year-old son, began playing outside the Heringlakes' apartment. Tracy Heringlake noticed that at some point during the afternoon Kyle had wandered over to "the neighbor's". Consequently, she "walked over to the neighbor's to bring Kyle back." Tracy Heringlake claimed that she then asked Clark if she could put Kyle in the bed of his pickup truck so that Clark could keep his eye on Kyle while he worked on her car. Clark, according to Tracy Heringlake, consented.

Clark said that he also noted that Kyle had wandered over to a "neighbor's place". He claimed, however, that he was working on Tracy Heringlake's car when he noticed that she had placed Kyle in the bed of the pickup truck together with Luke. Clark indicated that he had leashed Luke in the bed of the pickup truck earlier that day because he wanted to start working on Tracy Heringlake's car. Before being placed in the truck, according to Clark, the dog had been "running around" with Kyle in the yard, and Kyle was "throwing [a] stick for Luke, and they were playing".

Several minutes after Tracy Heringlake placed Kyle in the bed of the pickup truck, Luke attacked Kyle and bit him on the head. Clark stated that he saw Kyle jump or fall on Luke and saw Luke suddenly "snap[ ] twice ... right on top of" Kyle's head. As a result, Kyle suffered severe injuries to his face and head.

When asked in his deposition if he thought Luke would have attacked Kyle outside the bed of the pickup truck, Clark said "No, I don't feel he would have." Clark also observed, "I think maybe being tied in the truck like that, he [Luke] might have felt confined or something, maybe." Clark opined, "I know he [Luke] wouldn't have bit Kyle just from Kyle being in the back of that truck. There would have had to be something there."


Following the injury to Kyle, Steve and Tracy Heringlake brought suit for damages against Clark in Thurston County Superior Court. Viking, Clark's automobile insurance carrier, then filed a separate suit in Thurston County Superior Court against both Clark and the Heringlakes, seeking a declaration that Viking had no duty to defend or pay any damages that Clark might have to pay to the Heringlakes because of Kyle's injuries. 2 Viking asserted that there was no coverage for Clark's pickup truck under the circumstances at the time of Kyle's injury because the vehicle was not "being driven" by Clark, and alternatively, even if the vehicle was a covered vehicle, the accident causing injury to Kyle did not "arise[ ] out of the ... use" of the vehicle. Viking also sought a declaration that there was no PIP or medical expense coverage under the policy for Kyle's injuries.

Viking moved for summary judgment, submitting a declaration from Tracy Heringlake, Clark's insurance policy, the complaint filed by the Heringlakes against Clark, and excerpts from Clark's deposition. In response to Viking's motion, the Heringlakes submitted excerpts of deposition testimony of Donna Clark (Anthony Clark's mother) and Clark.

The trial court granted Viking's motion for summary judgment, concluding that Clark's policy with Viking did not provide liability coverage for the Heringlakes' claims against Clark, nor did it provide PIP or medical expense coverage for Kyle's injuries. 3


Steve and Tracy Heringlake also claimed benefits under an automobile policy they had with State Farm, seeking UIM coverage and first party benefits. State Farm denied their claims, contending that Kyle's injuries did not "aris[e] out of the ... use of an underinsured motor vehicle". The Heringlakes then commenced a declaratory judgment action in Pierce County Superior Court against State Farm. Both parties moved for summary judgment on the coverage issue. In support of its motion, State Farm submitted a copy of the Heringlakes' automobile insurance policy, a declaration from Tracy Heringlake, and excerpts from Clark's deposition. The Heringlakes submitted excerpts from Clark's deposition in support of their motion.

The trial court granted the Heringlakes' motion and denied State Farm's. It also awarded attorney fees and costs to the Heringlakes in the amount of $7,422.98. State Farm appeals both the summary judgment order and the order awarding fees and costs. 4


Summary judgment is properly granted if the pleadings, affidavits, depositions, and admissions on file demonstrate that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Yakima Cy. Fire Protec. Dist. 12 v. Yakima, 122 Wash.2d 371, 381, 858 P.2d 245 (1993). The reviewing court considers all the facts submitted and examines all reasonable inferences from those facts in the light most favorable to the nonmoving party. Hansen v. Friend, 118 Wash.2d 476, 485, 824 P.2d 483 (1992). We engage in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982).


Analysis of Issue Relative to the Heringlakes' Appeal from

Summary Judgment in Favor of Viking

The Heringlakes contend that the Thurston County Superior Court erred in concluding that because Clark's vehicle was parked and stationary, it was not "being driven" at the time Kyle was injured, and was not a covered vehicle under Clark's policy. Viking takes the opposite view, pointing to language in a Broad Form Named Driver's endorsement (endorsement) to Clark's policy that provides as follows: "We insure any car, owned or non-owned, being driven by you." Viking argues that because the pickup truck was parked and stationary, it was not "being driven by" Clark at the time Kyle was injured, and, thus, was not an insured vehicle.

The Heringlakes contend that the term "being driven by" is subject to two reasonable interpretations, one of which is favorable to them on the issue of coverage. If they are correct, the policy language is ambiguous, and the pickup truck was an insured vehicle. If a clause in an insurance policy is ambiguous, the construction most favorable to the insured must be applied, even if the insurer intended a different meaning. Morgan v. Prudential Ins. Co. of Am., 86 Wash.2d 432, 435, 545 P.2d 1193 (1976).

The interpretation of an insurance policy is a question of law. Hess v. North Pac. Ins. Co., 122 Wash.2d 180, 186, 859 P.2d 586 (1993); Roller v. Stonewall Ins. Co., 115 Wash.2d 679, 682, 801 P.2d 207 (1990); Transcontinental Ins. Co. v. Washington Pub. Utils. Dists'. Util. Sys., 111 Wash.2d 452, 456, 760 P.2d 337 (1988). Thus, we engage in a de novo review of the trial court's decision regarding insurance coverage. Roller, at 682, 801 P.2d 207. In construing insurance policy language, the policy should be given a fair, reasonable, and sensible construction. Roller, at 682, 801 P.2d 207.

"A clause in a policy is ambiguous when, on its face, it is fairly susceptible to two different interpretations, both of which are reasonable." Baehmer v. Viking Ins. Co. of Wis., 65 Wash.App. 301, 304, 827 P.2d 1113 (1992) (quoting Greer v. Northwestern Nat'l Ins. Co., 109 Wash.2d 191, 198, 743 P.2d 1244 (19...

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