Rocky Mountain Fire and Cas. Co. v. Goetz
| Decision Date | 24 August 1981 |
| Docket Number | No. 8303-1-I,8303-1-I |
| Citation | 633 P.2d 109,30 Wn.App. 185 |
| Parties | ROCKY MOUNTAIN FIRE AND CASUALTY COMPANY, Respondent, v. Gilbert GOETZ; Alice Goetz; Eileen Goetz; William Robert Cummings, Appellants, and Cindy Williams, Defendant. |
| Court | Washington Court of Appeals |
Richard Vlosich, Tacoma, Lawrence Warren, Renton, for appellants.
Murray, Dunham & Waitt, Matt Murray, Seattle, for respondent. JAMES, Chief Judge.
Gilbert Goetz, his wife Alice, and his daughter Eileen appeal a declaratory judgment determining that an automobile liability policy issued by Rocky Mountain Fire and Casualty Company (Rocky Mountain) did not cover a family-owned car driven by Eileen. We affirm.
On April 7, 1978, Gilbert and Alice Goetz, as the named insureds, obtained liability insurance from Rocky Mountain "for each vehicle as shown herein, ..." on the declaration of coverage. Exhibit 5. The application and declaration of coverage listed only two vehicles a 1971 Ford and a 1969 Plymouth.
The Goetzes also owned a 1959 DeSoto, purchased in 1963, which had not been operated for 5 to 6 years. Gilbert Goetz restored the DeSoto to running condition during May 1978, and Eileen testified that she began driving the car about the middle of May. Although she did not have a driver's license, Eileen was permitted on a number of occasions to drive the DeSoto to school, to the Vashon ferry dock, and to the homes of friends.
On the application, Rocky Mountain's agent noted information provided by the Goetzes: Exhibit 1. On May 16, Alice Goetz told the agent that Gilbert Goetz was fixing the DeSoto to give to Eileen and that they wanted to add the DeSoto to their policy. But when the agent discovered Eileen had no driver's license, he advised, " 'No, wait until Eileen gets her driver's license.' " The Goetzes made no further attempt to insure the DeSoto.
On July 1, 1978, Eileen drove the DeSoto to a party at a friend's home and was enroute from there to a tavern in Vashon when she collided with a motorcycle driven by William Cummings. Cummings sustained personal injuries and sued the Goetzes.
The policy promises "(t)o pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, ... caused by accident and arising out of the ownership, maintenance or use of the automobile." Exhibit 5 (Coverage A). "(T)he automobile" is defined by the policy as:
an automobile, ownership of which is acquired by the named insured or his spouse if a resident of the same household, if (i) it replaces an automobile owned by either and covered by this policy, or the company insures all automobiles owned by the named insured and such spouse on the date of its delivery, and (ii) the named insured or such spouse notifies the company within thirty days following such delivery date; but such notice is not required under coverages A, ... if the newly acquired automobile replaces an owned automobile covered by this policy.
Exhibit 5. The DeSoto did not replace either described vehicle. The Goetzes, however, contend Rocky Mountain is liable under the "all automobiles owned" clause. They reason that the phrase "all automobiles owned" refers only to operable 1 automobiles owned by the insured. They contend that, under the particular circumstances of this case, the term "delivery date" should be construed to be the date upon which their 1959 DeSoto was restored to running condition. We do not agree.
To construe the "all automobiles owned" clause as the Goetzes urge us to do would require us to rewrite the policy and reallocate the risk of loss in a manner which neither party could reasonably have contemplated. This we will not do.
In determining the intention of the parties to an insurance contract, terms should be understood in their plain, ordinary and popular sense. The rule that contracts of insurance are construed in favor of the insured and most strongly against the insurer should not be permitted to have the effect of making a plain agreement ambiguous, and then construing it in favor of the insured. A court may not modify clear and unambiguous language in an insurance policy or revise the insurance contact under the theory of construing it.
Pacific Indem. Co. v. Bloedel Timberlands Dev., Inc., 28 Wash.App. 466, 467-68, 624 P.2d 734 (1981). As is held in Trippel v. Dairyland Mutual Ins. Co., 2 Wash.App. 318, 320, 467 P.2d 862 (1970), the "(n)ewly (a)cquired (a) utomobile," provision "is clear and unambiguous" and "must be given effect in accordance with its plain meaning." The purpose of the provision is to
meet the necessity for maintaining coverage in the situation arising from the recognized custom among insured owners of acquiring other cars by replacement and new purchases during the life of their policies, and to provide coverage for the newly acquired car at the earliest time the insured needs protection.
(Footnotes omitted.) 12 G. Couch, Insurance § 45:184 (2d ed. 1964).
The word "delivery" ordinarily signifies a handing over of physical possession. For insurance purposes, the "delivery date" of a newly acquired car is when the buyer acquires physical possession of a car or has performed all acts required of him in connection with the car's purchase, whichever occurs first. 12 G. Couch, Insurance § 45:195 (2d ed. 1964). We find no language in Rocky Mountain's policy which would suggest or justify giving the words any meaning other than the ordinary one. Even if a newly acquired car is inoperable when its owner obtains the car, the delivery date or date of acquisition is nevertheless the date such possession or right to possession was obtained and not a subsequent date when the car becomes operable. Stockberger v. Meridian Mutual Ins. Co., Ind.App., 395 N.E.2d 1272 (1979); Allstate Ins. Co. v. Stevens, 445 F.2d 845 (9th Cir.1971); 12 G. Couch, Insurance § 45:201 (2d ed. 1964). The "delivery date" of a vehicle is not synonymous with the restoration of an inoperable vehicle to operable condition.
It is true that the delivery date may be immaterial if a previously owned inoperable vehicle is restored to operable condition and used as a replacement vehicle. National Indem. Co. v. Giampapa, 65 Wash.2d 627, 399 P.2d 81 (1965). As the majority in Giampapa noted, the insurer would not thereby become liable with respect to more than the number of vehicles described in the policy. Here, however, the Goetzes operated an additional vehicle.
There is also support for the view, urged by the Goetzes, that "all automobiles" should be construed to mean only operable vehicles. See Trippel v. Dairyland Mutual Ins. Co., supra (). An insured may own one or more described vehicles and also own an inoperable vehicle which is never placed in service. If the insured then acquires an additional operable vehicle, construing "all automobiles" to mean only operable vehicles so as to provide coverage for the additional vehicle does no violence to the expectations of either party. The insured is unlikely to expect that liability insurance for an inoperable vehicle is necessary, and the insurer is subjected to no additional risk because the "inoperable" vehicle is not being driven. That is not the case here.
Because the circumstances here do involve an additional risk to the insurer, the assumption of which the insurer may regulate by clear and unambiguous language, and because the term "delivery date" is clear and unambiguous, we decline to adopt the construction urged by the Goetzes. The Goetzes acquired possession, or took delivery, of the DeSoto in 1963. Rocky Mountain did not insure all vehicles owned by the Goetzes in 1963, nor could the Goetzes give notice within 30 days of such delivery date. Rocky Mountain is not liable under the "newly acquired automobile" provision.
The Goetzes next contend the policy affords them coverage under the "Use of Other Automobiles" provision of the policy. This provides coverage as follows:
V. Use of Other Automobiles: If the named insured is an individual or husband and wife and if during the policy period such named insured, or the spouse...
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