Rau v. Liberty Mut. Ins. Co., 4644-I

• Court: Court of Appeals of Washington
• Writing for the Court: ANDERSEN
• Citation: 21 Wn.App. 326,585 P.2d 157
• Parties: Paul RAU, a single man, Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Respondent.
• Docket Number: No. 4644-I,4644-I
• Decision Date: 25 September 1978

Page 326

21 Wn.App. 326 585 P.2d 157 Paul RAU, a single man, Appellant,
v.
LIBERTY MUTUAL INSURANCE COMPANY, Respondent. No. 4644-I. Court of Appeals of Washington, Division 1. Sept. 25, 1978.

[585 P.2d 158]

Page 327

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.

Page 328

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.

[585 P.2d 159] 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

Page 329

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

Page 330

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 [585 P.2d 160] 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

Page 331

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

Page 332

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[585 P.2d 161] touching it. There the court discussed what it means to "use" a vehicle...