Powell v. Viking Ins. Co., 7115-4-III
| Decision Date | 24 July 1986 |
| Docket Number | No. 7115-4-III,7115-4-III |
| Citation | 44 Wn.App. 495,722 P.2d 1343 |
| Court | Washington Court of Appeals |
| Parties | Richard L. POWELL, a married man, Respondent, v. VIKING INSURANCE COMPANY, a foreign insurance corporation, Appellant. |
J. Scott Miller, Turner, Stoeve, Gagliardi & Goss, Spokane, for appellant.
Paul J. Burns, Mathew D. Griffin, Inc., P.S., Everett, for respondent.
Viking Insurance Company appeals a summary judgment finding underinsured motorist coverage, under a policy issued by Viking to Richard Powell, for injuries suffered by Powell in a motorcycle accident allegedly caused by a "phantom vehicle." We reverse.
On June 24, 1984, Richard Powell was seriously injured in an accident in Spokane. Powell had been travelling on his motorcycle southbound in the left lane of Maple Street with his wife, Renee, following in her car in the right lane. As he was approaching an intersection at about 30 m.p.h., he swerved into the right lane, lost control of his motorcycle and crashed to the pavement. Powell lost consciousness and was unable to give a statement to the police. The police report stated that no other vehicle was involved in the accident.
At the time of the accident Mr. Powell had underinsured motorist coverage under a motorcycle insurance policy issued by Viking Insurance Co., and he submitted a claim under that coverage. In a statement to an insurance investigator on July 3, 1984, Powell stated that the accident was caused by his attempt to avoid a car entering the intersection from the left. In a statement given the same day, Renee Powell stated that she did not see a car attempt to enter the intersection, although she indicated that her husband changed lanes for some reason and that it was certainly possible that a car had pulled out from the side street. However, in an affidavit given on January 9, 1985, Renee stated that her husband had swerved on his motorcycle to avoid colliding with a vehicle that had pulled out into Maple Street "immediately and directly" into her husband's "lane of travel."
Viking denied Powell's claim for coverage which was based upon his contention that the accident was caused by a "phantom vehicle." The Viking policy, in its underinsured motorist endorsement, provides:
An underinsured motor vehicle may also be a "phantom" vehicle which causes a motorcycle accident and can be confirmed by adequate proof from someone other than you or anyone making a claim for damages.
* * *
A "phantom vehicle" means a motor vehicle which has no physical contact with you or the motorcycle we insure and causes bodily injury or property damage to you in the accident. However, you or someone on your behalf must report the accident to the police within 72 hours ...
(Emphasis in original.)
The definition section states The terms that are defined below are in italics when they appear in the text of this policy....
You, your, yourself means the person named on the declarations page and that person's husband or wife if a resident of the same household....
(Emphasis in original.)
Viking's denial of Powell's claim was based upon the policy requirement that the existence of the phantom vehicle be corroborated by someone other than the named insured, the named insured's spouse, or anyone making a claim.
Powell brought a declaratory judgment action against Viking, arguing that under the underinsured motorist statute, his wife can corroborate the existence of the phantom vehicle. Both parties moved for summary judgment. The trial court denied Viking's motion and granted Powell's motion. The court agreed with Powell's argument that the statute allows his wife to testify to the existence of the phantom vehicle.
We look first at the policy language. A named insured's spouse comes within the definition of you, the underlined term in the policy. Because the policy states that a phantom vehicle "can be confirmed by adequate proof from someone other than you ...," Renee Powell is precluded from confirming the existence of the phantom vehicle by the unambiguous terms of the policy.
We next consider the statutory language. The relevant part of RCW 48.22.030, the underinsured motorist statute, states:
(8) For the purposes of this chapter, a "phantom vehicle" shall mean a motor vehicle which causes bodily injury, death, or property damage to an insured and has no physical contact with the insured or the vehicle which the insured is occupying at the time of the accident if:
(a) The facts of the accident can be corroborated by competent evidence other than the testimony of the insured or any person having an underinsured motorist claim resulting from the accident....
(Emphasis added.)
The initial question is whether, in subsection (8)(a), "the insured" means, as Powell contends, the particular insured who is making the claim, by virtue of his occupancy in the vehicle at the time of the accident, or whether "the insured" means, as Viking contends, any person insured under the policy. Under Viking's interpretation, the spouse of the named insured could not corroborate the facts of the accident, an interpretation that would be consistent with Viking's policy language. Under Powell's interpretation, which would not automatically preclude corroboration by the named insured's spouse, the policy language would be more restrictive than the statutory language. An insurer may not limit coverage that is mandated by statute. Finney v. Farmers Ins. Co. of Wash., 92 Wash.2d 748, 751-52, 600 P.2d 1272 (1979). In this case we agree with Powell that Viking's attempt to restrict or limit coverage is ineffective.
In construing a statute, the court's paramount duty is to ascertain and carry out the intent of the Legislature. Service Employees International Union v. Superintendent of Pub. Instruction, 104 Wash.2d 344, 348, 705 P.2d 776 (1985); Millers Cas. Ins. Co. of Texas v. Briggs, 100 Wash.2d 1, 5, 665 P.2d 891 (1983). To determine the intent of the Legislature, the court must look first to the language of the statute. Service Employees International Union v. Superintendent of Pub. Instruction, supra. Where statutory language is plain and unambiguous, the statute's meaning must be derived from the wording of the statute itself. Human Rights Comm'n v. Cheney Sch. Dist. 30, 97 Wash.2d 118, 121, 641 P.2d 163 (1982). Statutory language is ambiguous when it is uncertain or susceptible to more than one meaning. State v. Theilken, 102 Wash.2d 271, 276, 684 P.2d 709 (1984). Absent statutory definition, the words of a statute must be given their usual and ordinary meaning. Adams v. Department of Social & Health Services, 38 Wash.App. 13, 16, 683 P.2d 1133 (1984).
The meaning of the statute here can be determined from its wording, albeit a close and careful reading is necessary. "An insured" logically refers to any person insured under the policy, and does not refer only to the "named insured," a term used elsewhere in the statute. See RCW 48.22.030(2), (4). The use of the definite article "the" in "the insured" restricts the meaning of the latter term to certain insureds within the class of those insured. That restriction is clarified by the phrase "the vehicle which the insured is occupying at the time of the accident...." RCW 48.22.030(8). (Italics ours.) Thus, "the insured," as used in RCW 48.22.030(8)(a) means the person who is insured under the policy and, for purposes of this case, who is occupying the vehicle involved in the accident.
We cannot presume, as Viking contends, that the Legislature intended no difference between "an insured" and "the insured." In construing a statute, the court must give effect to all the language used. In re the Marriage of Timmons, 94 Wash.2d 594, 600, 617 P.2d 1032 (1980). No word of a statute should be deemed superfluous, void, or insignificant. United Parcel Service, Inc. v. Department of Rev., 102 Wash.2d 355, 361-62, 687 P.2d 186 (1984).
Our construction of the statute does not, however, mean that a spouse can, under all circumstances, provide independent corroboration 1 of the facts of the accident. The statute precludes that corroboration from "any person having an underinsured motorist claim resulting from the accident...." RCW 48.22.030(8)(a). Thus, either by being in that category or in the category of "the insured," a spouse suffering bodily injury from the accident would be precluded. A spouse may have a claim for loss of consortium deriving from the other spouse's injuries. See Christie v. Maxwell, 40 Wash.App. 40, 696 P.2d 1256 (1985). If a spouse has such a claim, the statute requires corroboration independent of any testimony of that spouse....
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