Rau v. Liberty Mut. Ins. Co.

Decision Date25 September 1978
Docket NumberNo. 4644-I,4644-I
Citation21 Wn.App. 326,585 P.2d 157
PartiesPaul RAU, a single man, Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Respondent.
CourtWashington Court of Appeals
James V. Grubb, Seattle, for appellant

Williams, Lanza, Kastner & Gibbs, Fred M. Zeder, Joel Cunningham, Seattle, for respondent.

ANDERSEN, Acting Chief Judge.

FACTS OF CASE

A truck driver, who was struck by an uninsured motorist when he had briefly left his truck to inquire about directions, appeals from a summary judgment determining that he was not covered by the uninsured motorist endorsement of the insurance policy on the truck.

Paul Rau was employed as a truck driver by Superior Fast Freight Company. Superior was in the local cartage and freight forwarding business and its trucks were covered by an automobile insurance policy issued by Liberty Mutual Insurance Company. The policy contained an uninsured motorist endorsement.

On the date of the accident with which this case is concerned, the driver parked the truck at the curb of the southbound lanes of Fourth Avenue South in Seattle, near its intersection with Lucille Street. He left the truck and crossed all four lanes of Fourth Avenue South on foot to ask directions from another truck driver, also employed by Superior. In returning to his truck, he was struck by an uninsured motorist. The impact occurred in a northbound lane of Fourth Avenue South, some 20 feet from where the truck he had been driving was parked.

One issue is presented.

ISSUE

Was the truck driver covered by the uninsured motorist endorsement on the vehicle he had been driving when, while returning to his vehicle after inquiring as to directions about where to make a delivery, he was struck by an uninsured motorist?

DECISION

CONCLUSION. Under the undisputed facts presented, the driver was "using" the truck at the time of the accident and was therefore an insured under the uninsured motorist endorsement.

The trial court granted the insurance company's motion for summary judgment on the ground that at the time of the accident the driver was not an insured under the uninsured motorist endorsement of the policy it wrote on the truck.

Our approach to this case has been mandated by the legislature, our State Supreme Court and by prior decisions of this court. The provisions of the uninsured motorist statute are to be liberally construed to the end that innocent victims will be protected from irresponsible drivers. RCW 48.22.030; Touchette v. Northwestern Mut. Ins. Co., 80 Wash.2d 327, 333-35, 494 P.2d 479 (1972); Signal Ins. Co. v. Walden, 10 Wash.App. 350, 353, 517 P.2d 611 (1973).

The driver was not one of the insureds named on the policy. We must therefore look to the other categories of persons who are insured under the policy.

In that connection, the public policy regarding uninsured motorist coverage as set forth in RCW 48.22.030 1 controls over the express terms of the insurance contract. It is settled in this state that

the statutory policy of RCW 48.22.030 vitiates any attempt to make the meaning of insured for purposes of uninsured motorist coverage narrower than the meaning of that term under the primary liability section of the policy.

Federated Am. Ins. Co. v. Raynes, 88 Wash.2d 439, 443, 563 P.2d 815, (1977). Accord, Touchette v. Northwestern Mut. Ins. Co., supra 80 Wash. at 334-35, 494 P.2d 479. Thus parties to an insurance contract may agree to a narrow definition of persons insured so long as the definition is applied consistently throughout the policy. But once it is determined that a person is insured under the liability section of the policy, that person is also entitled to be considered as an insured under the uninsured motorist endorsement of the policy. Federated Am. Ins. Co. v. Raynes, supra.

Turning first to the liability section of the policy, the definition of "insured" pertaining to the driver, covers him while Using the truck with Superior's permission. 2 In this connection, it should be noted that although the liability section of the policy excludes from bodily injury coverage any losses to employees which are covered by workmen's compensation (as the driver's injury was), such workmen's compensation exclusions pertain only to the liability Risks which are insured against in the liability section of the policy. Workmen's compensation exclusions in the liability section of the policy do not relate to who an Insured is and Touchette and Federated American instruct us that the "meaning of insured" is the pertinent inquiry. 3

Turning then to the uninsured motorist endorsement of the policy, the definition of "insured" pertaining to the driver covers him while Occupying the truck and, in that context, "occupying" is defined as meaning "In or upon or entering into or alighting from " such vehicle. 4

Thus it is, that according to the policy as written, the driver was an insured under the liability section of the insurance policy while he was "using" the vehicle, but he was an insured under the uninsured motorist endorsement of the policy only when he was "in or upon or entering into or alighting from" the vehicle. To the extent that the uninsured motorist endorsement purported to narrow the definition of insured to cover the driver only when he was "in or upon or entering into or alighting from" the truck, that effort was invalid. Touchette v. Northwestern Mut. Ins. Co., supra; Federated Am. Ins. Co. v. Raynes, supra.

At the time of his injury, the driver had the insured truck out with the permission of the owner, his employer. In determining whether the driver was covered by the uninsured motorist endorsement at the time of his injury, the critical inquiry therefore becomes whether he was "using" the truck at the time he was struck by the uninsured motorist. If he was using the truck at the time, he is insured under the endorsement.

Although the uninsured motorist endorsement in this case does not contain the words "use" or "using," 5 it is of interest to note that these words are deemed contained in such endorsements by force of statute and judicial construction in several states, as we similarly deem them included in the endorsement in this case. We are therefore able to refer to those decisions to assist in determining what constitutes "using" a vehicle within the contemplation of the uninsured motorist endorsement in the case before us.

In point is the recent decision in Hartford Accident & Indem. Co. v. Booker, 140 Ga.App. 3, 230 S.E.2d 70 (1976). Booker involved a sanitation worker who was injured while he was near his truck but not physically touching it. There the court discussed what it means to "use" a vehicle within the contemplation of an uninsured motorist endorsement:

Since use of a vehicle determines who is insured for purposes of the (uninsured motorist) statute, the definition of the word "use" becomes a central issue in this case. In Federated Mut. etc., Ins. Co. v. Gupton, 241 F.Supp. 509, 511 (E.D.S.C.1965) an action identical to the instant case in all material respects, the court said: "Exact definition of the term 'use' is elusive, and is not capable of a definition which will leave everyone 'comfortable.' Whether or not an injury arose from the 'use' of a motor vehicle within the contemplation of a liability policy or statute depends upon the factual context of each case. In this setting the term does not imply 'remoteness,' but does extend beyond actual physical contact. And it would seem to extend at least to the point, beyond physical contact, where control over the instrumentality is easily or reasonably at hand, and particularly when it is still being 'utilized.' "

Hartford Accident & Indem. Co. v. Booker, 230 S.E.2d at 72.

Booker held that there was coverage under the uninsured motorist endorsement for the truck driver who was struck by an uninsured motorist while he was picking up garbage some 30 feet from the garbage truck. In ruling for the driver, the court stated:

In defining the word "use" of the garbage truck, we must look to the contemplation of the parties in entering into the insurance contract. It is clear from the insurance contract that this vehicle was to be used in the business of "Sanitary Pick Up," and that this included "Garbage Ashes or Refuse Collecting including completed operations." Common sense tells us that the parties certainly contemplated that the garbage truck would be loaded and unloaded and that the garbage to be loaded on said truck would be hauled to the truck by a garbage collection container and that, in many instances, it would be necessary for the driver to walk down the side of the road near his truck in order to collect the garbage.

Hartford Accident & Indem. Co. v. Booker, 230 S.E.2d at 73.

The case of Federated Mut. Implement & Hardware Ins. Co. v. Gupton, 241 F.Supp. 509 (E.D.S.C.1965), cited with approval in the above excerpt quoted from Booker, was appealed to the fourth circuit. In affirming, the fourth circuit agreed that a service station employee who drove a service station truck out to deliver gasoline to a stalled automobile was "using" the insured truck within the purview of the uninsured motorist endorsement when the disabled automobile being driven by the uninsured motorist suddenly backed up and struck him as he was putting gas into it. Federated Mut. Implement & Hardware Ins. Co. v. Gupton, 357 F.2d 155 (4th Cir. 1966).

A closely analogous case is Owens v. Ocean Accident & Guarantee Corp., 194 Ark. 817, 109 S.W.2d 928 (1937). Although Owens dealt with liability coverage rather than uninsured motorist coverage, it is pertinent in that at issue was whether an injury arose out of the Use of an ambulance. The injury to the patient, who fell off the ambulance stretcher some distance from the ambulance, was held to be covered by the policy on the ambulance. There the court noted that

it is not a perversion or extension of the contract, when applied to the instant...

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