Nationwide Ins. v. Williams

• Decision Date: 24 September 1993
• Docket Number: No. 15443-9-II,15443-9-II
• Citation: 71 Wn.App. 336,858 P.2d 516
• Court: Washington Court of Appeals
• Parties: NATIONWIDE INSURANCE, Respondent, v. Melvin WILLIAMS, Antoinette Williams, husband and wife, and their marital community, Appellants. Division 2

Page 336

71 Wn.App. 336

858 P.2d 516

NATIONWIDE INSURANCE, Respondent, v. Melvin WILLIAMS, Antoinette Williams, husband and wife, and their marital community, Appellants.

No. 15443-9-II.

Court of Appeals of Washington,

Division 2.

Sept. 24, 1993.

Ronald G. Meyers, Port Orchard, for appellants.

Richard S. Lowell, Magnuson Johnson & Lowell, Redmond, for respondent.

Bryan P. Harnetiaux, Gary N. Bloom, Harbaugh & Bloom, Spokane, for amicus curiae Wash. Trial Lawyers Assoc.

Bruce G. Lamb, Merrick Hofstedt & Lindsey, Seattle, for amicus curiae Wash. Defense Trial Lawyers.

SEINFELD, Judge.

Melvin and Antoinette Williams appeal from an order denying their motion for summary judgment, staying arbitration and granting summary judgment to their insurer, Nationwide Insurance. Nationwide persuaded the trial court that its policy does not cover the Williamses' underinsured motorist (UIM) claim because of the lack of corroborating evidence that Mel Williams was run off the road by a "phantom" vehicle. We reverse the trial court.

As he traveled from his home on the Gig Harbor peninsula toward Tacoma for an early morning meeting, Mel Williams's pickup truck left the roadway and smashed into a tree. The accident occurred near an intersection of two state roads. Williams had the right of way; a stop sign controlled the intersecting traffic. The cab area of Williams's truck was badly damaged, apparently due to the impact with the tree, but he managed to unbuckle his seat belt and crawl out of the vehicle. After several minutes, nearby residents and aid personnel arrived at the scene. No one other than Williams witnessed the accident and, by the time help arrived, no other cars were present at the scene. However, as he lay near his truck, bleeding and drifting in and out of consciousness, Williams moaned that he had been run off the road by another vehicle. At the hospital the emergency room doctor diagnosed various injuries, including a fractured nose, contusions, lacerations, and neck injuries, and noted in his chart that Williams had been run off the road by another vehicle.

Williams submitted a claim for medical expenses and property damage to Nationwide, which the company paid. Approximately 5 years later, Williams sought additional compensation under the UIM portion of his policy and, apparently, requested arbitration to determine liability and damages.

The Williamses' insurance policy includes coverage for property damage caused by the owner or driver of an underinsured motor vehicle. The policy provides:

In any underinsured motorists claim, we will jointly determine with the insured or his legal representative whether there is legal right to recover damages and, if so, in what amount. If agreement cannot be reached with regard to liability or amount of damages, the matter will be decided by arbitration.

An underinsured motor vehicle is described, in relevant part, as

(c) a "hit-and-run" motor vehicle or phantom vehicle which causes property damage to your property.

Identity of the driver and the owner of the "hit-and-run" vehicle must be unknown. A phantom vehicle is one which causes property damage to the insured property but which has no physical contact with it. These accidents must be reported to the police or proper governmental authority within 72 hours. The facts of the phantom vehicle accident must be corroborated by competent evidence other than the testimony of the insured

. . . . .

(Italics ours.) ¹

In support of his allegation that he was forced off the road by a phantom vehicle, Williams offered evidence consisting of his own statements made at the time of the accident or shortly thereafter. Williams tried to convince Nationwide that his statements describing a phantom vehicle as the cause of the accident were "excited utterances" and, therefore, not excluded as "testimony of the insured". ² Nationwide did not accept Williams's corroborative evidence and moved in superior court for a stay of arbitration, demanding a jury trial on the issue of coverage. Both parties then moved for summary judgment. ³

The trial court reviewed Mel Williams's alleged "excited utterances", presented in the form of affidavits of Mike White and Craig Brown. Mike White lived near the accident site and was awakened by the noise of the crash. He investigated and discovered Mel Williams "conscious and coherent. He [Williams] asked several times if anybody had seen another car involved. He [Williams] made several references to another car that he had apparently tried to avoid, causing the impact with the tree." Craig Brown also was awakened by the crash. He, too, investigated and "heard moaning and found a man lying on the ground near the truck. He was real bloody and obviously badly hurt. He said 'somebody ran me off the road'." Williams also submitted to the trial court the emergency room doctor's notes, taken approximately an hour after the accident: "[t]he patient states that he was the driver wearing a seat belt when he was run off the road by another vehicle [resulting in Williams's vehicle] striking a pole."

In addition, Williams offered the affidavit of Robert Broshears, an accident reconstruction expert. Although he conducted his investigation 5 years after the accident, Broshears opined "Melvin Williams did in fact attempt to avoid a collision with another vehicle and as a result lost control and ran off the road." Broshears based his analysis in part upon his interview with Williams and upon his review of Williams's statements immediately following the crash. Williams supplemented the above evidence with the affidavit of a friend who stated he had seen the skid marks on the highway several hours after the accident, and with the affidavit of the business associate with whom Williams had been scheduled to meet on the morning of the accident. Apparently to rebut Nationwide's theory that Williams fell asleep at the wheel, Williams's business colleague stated Williams was never late for meetings.

The trial court denied the Williamses' motion and granted Nationwide's motion, concluding that UIM coverage "is unavailable for [the Williamses'] claims arising from the 12/2/84 automobile accident ..." The trial court explained its ruling, stating that all of the Williamses' proffered evidence was traceable to Mel Williams's own statement; therefore, the Williamses did not provide the required corroboration of the phantom vehicle by "competent evidence other than the testimony of the insured." Because the Williamses lacked coverage, the trial court also denied their request for arbitration. The Williamses now appeal both the summary judgment of no coverage and the stay of arbitration.

When reviewing an order of summary judgment, we engage in the same inquiry as the trial court. We consider all of the evidence in the light most favorable to the nonmoving party, and affirm only if, based on that evidence, we are satisfied that there is no issue of material fact and reasonable persons could reach but one conclusion. Marincovich v. Tarabochia, 114 Wash.2d 271, 274, 787 P.2d 562 (1990).

Here, through the affidavits of White and Brown, Williams has placed before the trial court evidence of his excited utterances. If the contents of these affidavits are admissible as proper corroborating evidence, the Williamses indisputably have raised an issue of material fact regarding the existence of the phantom vehicle and have satisfied the UIM coverage requirement. In that event, we would be required to conclude that the trial court erred in granting summary judgment to the insurer. Thus, we first must determine whether an insured can use evidence of his or her own excited utterances to satisfy the UIM statutory and policy requirements for corroboration of a phantom vehicle by "competent evidence other than the testimony of the insured". We decide in the affirmative. Several lines of analysis support our holding.

When construing a statute, "this court's paramount duty is to ascertain and carry out the intent of the legislature." Powell v. Viking Ins. Co., 44 Wash.App. 495, 499, 722 P.2d 1343 (1986). The purpose of RCW 48.22.030, "Underinsured, hit and run, phantom vehicle coverage to be provided - Exceptions - Conditions - Deductibles", is to provide broad protection against financially irresponsible motorists. Courts will liberally construe the statute in order to meet that legislative goal. Kenworthy v. Pennsylvania Gen. Ins. Co., 113 Wash.2d 309, 313, 779 P.2d 257 (1989). However, the broad goal of protection must be balanced against another purpose of the statute, the prevention of fraudulent claims; "hence, the need for testimony from someone other than the claimant or anyone else who stands to benefit from proof of a 'phantom vehicle.' " Gobin v. Allstate Ins. Co., 54 Wash.App. 269, 273, 773 P.2d 131 (1989). Based on our reading of RCW 48.22.030(8), we are satisfied that the inclusion of excited utterances within the parameters of "competent evidence other than the testimony of the insured" meets both of the above goals.

To determine the meaning of RCW 48.22.030(8) (and the identical language of the insurance policy), we apply rules of statutory construction. ⁴ Undefined statutory terms must be given their usual and ordinary meaning and courts may not read into a statute meanings which are not there. Dominick v. Christensen, 87 Wash.2d 25, 27, 548 P.2d 541 (1976). RCW 48.22.030(8) leaves the term "testimony" undefined. Thus we turn to the dictionary. See Codd v. Stevens Pass, Inc., 45 Wash.App. 393, 399, 725 P.2d 1008 (1986), review denied, 107 Wash.2d 1020 (1987). The dictionary defines "testimony" as: "a declaration or statement made under oath or affirmation by a witness in a court, often in response to questioning, to establish a fact". Webster's New World Dictionary 1470 (2d College ed. 1976). Black's Law Dictionary 1646 (4th ed. rev. 1968) similarly defines "testimony" as "Evidence given by a competent...