Miller v. Allstate Ins. Co.

• Decision Date: 16 September 1965
• Docket Number: No. 37557,37557
• Citation: 66 Wn.2d 871,405 P.2d 712
• Court: Washington Supreme Court
• Parties: Mitchell F. MILLER and Mary Miller, husband and wife, Appellants, v. ALLSTATE INSURANCE COMPANY, a corporation, Respondent.

Page 871

66 Wn.2d 871

405 P.2d 712

Mitchell F. MILLER and Mary Miller, husband and wife, Appellants, v. ALLSTATE INSURANCE COMPANY, a corporation, Respondent.

No. 37557.

Supreme Court of Washington, Department 2.

Sept. 16, 1965.

Dullanty & Fish,

James A. Fish, Spokane, for appellants.

Reiley & Annis, Eugene I. Annis, Spokane, for respondent.

RYAN, Judge. ¹

The plaintiffs brought this action to secure a judgment declaring that a bodily injury liability insurance policy issued to them by the defendant be interpreted to provide primary insurance coverage or in the alternative excess coverage for damages over and above any other insurance available to them.

The plaintiff Mary Miller was seriously injured in an accident which occurred July 28, 1962. At that time, she was a passenger in an automobile owned by her brother, Elmer Anderson, and being then driven by her son. The accident was a head-on collision with an automobile driven by an uninsured operator. It appears from the statements of counsel for the plaintiffs that the uninsured driver of the other automobile was at fault and is liable, although an action against him for damages has not yet been tried and is still pending. The plaintiffs allege damages in a total amount not to exceed $32,000.

The policy of insurance issued to the plaintiffs by the defendant, Allstate Insurance Company, contains a section entitled 'Protection Against Bodily Injury by Uninsured Automobiles' within which is the following:

Exclusions--what this Section does not cover

This Section of the Policy does not apply:

1. to bodily injury of an insured sustained while in or upon, entering into or alighting from, any automobile, other than an owned automobile, if the owner has insurance similar to that afforded by this Section and such insurance is available to the insured Mrs. Miller's brother also carried insurance against injury by uninsured automobiles, the policy having been written by Farmers Insurance Exchange. This policy provides:

Except as provided in the foregoing paragraph, if the insured has other similar insurance available to him and applicable to the accident, the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the Company shall not be liable for a greater proportion of of any loss to which this Uninsured Motorists Coverage applies than the limit of liability hereunder bears to the sum of the applicable limits of liability of this insurance and such other insurance.

The limit of liability on each policy was $10,000. The premium charge for the Allstate uninsured motorist coverage was $4.50 and for the Farmers was $4.00. Farmers has paid the plaintiffs $10,000 and they are now attempting to compel the defendant to pay them an additional sum in the same amount. Allstate has denied this claim, contending that it is not liable because of the exclusion in its policy relating to injuries caused by an uninsured automobile where the insured is riding in a nonowned automobile and there is other similar coverage available.

This case was submitted to the trial court on a stipulated statement of facts and, following argument of counsel, the court dismissed plaintiff's complaint, from which they now appeal.

The provision above cited in the Allstate policy is generally referred to as an 'escape' clause and the portion of the Farmers policy quoted is commonly designated as a 'pro rata' clause.

We are here confronted with the question of whether the pro rata clause provides insurance similar to that furnished by the defendant or whether it conflicts with and is so repugnant to the escape clause that the latter is nullified and the defendant held liable to the full extent of its coverage.

This is the first case we have been called upon to decide, involving the precise issues here presented. A careful review of all authorities and decisions cited by counsel, together with others we have discovered, conclusively establishes that this case falls within an area of law which is nebulous, unsettled and devoid of uniformity or agreement. This is quite understandable when we consider the comparative newness of extensive automobile ownership and use, the frightening increase in traffic accidents and injuries, the great and growing number of casualty insurance companies and the multiple forms of coverage they offer to prospective purchasers.

In a case involving two insurance companies, both of which had 'other insurance' provisions in their policies, the court, in Oregon Auto. Ins. Co. v. United States Fid. & Guar. Co., 9 Cir., 195 F.2d 958 (1952), referring to cases in other jurisdictions, said, 'These decisions point in all directions. * * * In sum, the cases are irreconcilable in respect both of approach and result.'

The instant case may be termed unique in that, unlike the vast majority of other cases cited, it presents a contest between an insured and one of two insurers. The other insurer has paid in full and is not demanding any reimbursement or contribution. Most of the cases cited from other jurisdictions involve disputes between insurers to determine their respective liability to a common insured. We must conclude that the basic question before us is that of interpretation of the insurance contract between the parties to this action. In seeking the solution of this problem, we should constantly keep in mind that any like case must be carefully analyzed regarding its particular facts and circumstances and compared or distinguished accordingly.

In a very recent case decided by this court, Safeco Ins. Co. of America, Inc., v. Pacific Indem. Co., 66 Wash.Dec.2d 33, 401 P.2d 205 (1965), we held that, as between two insurers, the defendant was liable for all loss sustained by the insured because it had the primary liability under the provisions of the two policies. The plaintiff's policy issued to the driver contained an 'excess' clause and the defendant's policy, insuring the owner, included a 'pro rata' clause. We held that an excess clause does not necessarily conflict with a pro rata clause and may be given effect without invalidating the pro rata contribution clause in the other policy. Although this case may be clearly distinguished from the present case because of the many factual differences, it would seem to give some measure of support to the decision of the trial court.

The plaintiffs urge that Allstate should be held liable to pay them $10,000 in addition to the same sum already paid by Farmers for the reason that...