Roller v. Stonewall Ins. Co.

• Decision Date: 06 December 1990
• Docket Number: No. 56664-0,56664-0
• Citation: 115 Wn.2d 679,801 P.2d 207
• Court: Washington Supreme Court
• Parties: Daniel ROLLER, Respondent, v. STONEWALL INSURANCE CO., a foreign insurance company, Petitioner. En Banc

Page 679

115 Wn.2d 679

801 P.2d 207

Daniel ROLLER, Respondent, v. STONEWALL INSURANCE CO., a foreign insurance company, Petitioner.

No. 56664-0.

Supreme Court of Washington,

En Banc.

Dec. 6, 1990.

Reed, McClure, Moceri, Thonn & Moriarty, William R. Hickman, Pamela A. Okano, Seattle, for petitioner.

Robert A. Izzo, Tacoma, for respondent.

GUY, Justice.

Respondent Roller brought a declaratory action to determine insurance coverage under an underinsured motorist claim. The trial court determined that the injuries incurred were not covered by underinsured motorist insurance and the appellate court reversed. At issue is whether the claimant was "using" the insured vehicle at the time of the incidents and whether an intentional act of a tortfeasor constitutes an "accident". We affirm the trial court and hold that there is no underinsured motorist coverage of claimant's injuries.

On December 17, 1985, Ernest Flattum drove Daniel Roller and Roller's daughter to a babysitter's home which was next door to the home of Roller's former wife, Dinell McKay. As Roller emerged from the babysitter's house, McKay came out of her house yelling obscenities. She then got into her car and deliberately rammed her car against Flattum's car then occupied by both Flattum and Roller. McKay rammed her car against the Flattum car several times until the bumpers locked. Once the bumpers were locked, Roller exited Flattum's car and went into the babysitter's house to call the police. After calling the police, Roller stood in the street to observe and to write down McKay's license plate number. Meanwhile, McKay rocked her car free and then deliberately ran down Roller in the street carrying him on the hood of her car for a short distance. Roller sustained injuries as a result of McKay's actions.

Neither McKay nor Roller carried automobile insurance. Flattum had an automobile insurance policy that included underinsured motorist coverage. Roller made claim under this coverage to the insurer, Stonewall Insurance Company, for his injuries. Stonewall denied coverage and Roller brought a declaratory action to determine coverage under Flattum's underinsured motorist policy. Both parties filed cross motions for summary judgment. The trial court granted Stonewall's summary judgment motion and denied coverage.

The Court of Appeals reversed in a split decision. Roller v. Stonewall Ins. Co., 55 Wash.App. 758, 780 P.2d 278 (1989). The court held that Roller was at all times a covered passenger who was "using" Flattum's car and therefore was an "insured" under Flattum's policy. Further, the court held that all injuries were the result of "accidents" within the meaning of the insurance policy. We accepted discretionary review.

In reviewing the trial court's decision regarding a motion for summary judgment, this court must engage in the same inquiry as the trial court. Wendle v. Farrow, 102 Wash.2d 380, 383, 686 P.2d 480 (1984). A summary judgment may not be granted unless there is no genuine issue as to any material fact. Wendle, at 383, 686 P.2d 480. Here, there is no dispute about the facts, and coverage depends solely on the language of the insurance policy. The interpretation of insurance policy language is a question of law. State Farm Gen. Ins. Co. v. Emerson, 102 Wash.2d 477, 480, 687 P.2d 1139 (1984). Thus, we will conduct a de novo review of the trial court's decision regarding insurance coverage. Inland Empire Distrib. Sys., Inc. v. Utilities & Transp. Comm'n, 112 Wash.2d 278, 282, 770 P.2d 624 (1989). In construing the language of an insurance policy, the policy should be given a fair, reasonable, and sensible construction as would be given to the contract by the average person purchasing insurance. E-Z Loader Boat Trailers, Inc. v. Travelers Indem. Co., 106 Wash.2d 901, 907, 726 P.2d 439 (1986) (citing Morgan v. Prudential Ins. Co. of Am., 86 Wash.2d 432, 545 P.2d 1193 (1976)). ¹

I

Stonewall contends that even if Roller "used" Flattum's car, there is no coverage because the policy only covered injuries caused by an "accident" involving the use of an underinsured motor vehicle. Stonewall further contends that McKay's actions were deliberate and intentional and therefore neither collision was "accidental". There is persuasive authority in other jurisdictions indicating that courts frequently withhold underinsured motorist coverage in situations where the "accident" was an intentional criminal act. See, e.g., Alabama Farm Bureau Mut. Cas. Ins. Co. v. Mitchell, 373 So.2d 1129 (Ala.Civ.App.1979); Edwards v. State Farm Mut. Auto. Ins. Co., 399 N.W.2d 95 (Minn.Ct.App.1986). ²

Ultimately, many jurisdictions conclude, as this court does, that an intentional act cannot, by definition, be an accident. See, e.g., Northern Ins. Co. v. Hampton, 510 So.2d 649 (Fla.Dist.Ct.App.1987); Locascio v. Atlantic Mut. Ins. Co., 127 A.D.2d 746, 511 N.Y.S.2d 934 (1987). This court has defined "accident" as an unusual, unexpected and unforeseen happening and has stated that

an accident is never present when a deliberate act is performed unless some additional unexpected, independent and unforeseen happening occurs which produces or brings about the result of injury or death. The means as well as the result must be unforeseen, involuntary, unexpected and unusual.

Grange Ins. Co. v. Brosseau, 113 Wash.2d 91, 96, 776 P.2d 123 (1989) (quoting Unigard Mut. Ins. Co. v. Spokane Sch. Dist. 81, 20 Wash.App. 261, 263-64, 579 P.2d 1015 (1978)). See also Detweiler v. J.C. Penney Cas. Ins. Co., 110 Wash.2d 99, 751 P.2d 282 (1988); McCarthy v. Motor Vehicle Accident Indemnification Corp., 16 A.D.2d 35, 224 N.Y.S.2d 909 (1962), aff'd, 12 N.Y.2d 922, 238 N.Y.S.2d 101, 188 N.E.2d 405 (1963). ³

The Court of Appeals determined that both of the incidents between McKay and Roller were accidents. It relied on this court's decision in Federated Am. Ins. Co. v. Strong, 102 Wash.2d 665, 689 P.2d 68 (1984). In Federated, an estranged wife used her husband's insured car to run into two other cars intentionally. The insurance company denied liability insurance coverage because the incident was not "accidental". This court held that an intentional tort, which nullifies the tortfeasor's liability insurance coverage under the terms of the policy, does not nullify the coverage of the tortfeasor's spouse who is separately insured under the same policy. Federated, 102 Wash.2d at 674, 689 P.2d 68. Federated is distinguishable from this case, however, because Roller was attempting to gain coverage under Flattum's underinsured motorist policy for injuries caused by a third person rather than the facts presented by Federated in which the husband was given coverage for damages to his own car inflicted by his wife's intentional acts.

Because the Stonewall policy does not define "accident", the term must be given its popular and ordinary meaning. Harrison Plumbing & Heating, Inc. v. New Hampshire Ins. Group, 37 Wash.App. 621, 624, 681 P.2d 875 (1984). This court has determined that "[a] loss is 'accidental' when it happens without design, intent, or obvious motivation." Federated, 102 Wash.2d at 674, 689 P.2d 68 (citing Webster's Third New International Dictionary 11 (1971)). On the basis of this common sense definition, this court has determined that an intentional act can never be an "accident". Grange Ins. Co., 113 Wash.2d at 95, 776 P.2d 123. Furthermore, pursuant to the common sense definition, "accident" is not a subjective term. Thus, the perspective of the insured as opposed to the tortfeasor is not a relevant inquiry. Either an incident is an accident or it is not. McKay's intentional ramming of Roller was not an accident. ⁴

Another persuasive argument justifying the denial of underinsured motorist coverage for intentional acts is that the purpose of the underinsured motorist statute is to permit the injured party to recover those damages he or she would have received if the tortfeasor had been insured. Hamilton v. Farmers Ins. Co., 107 Wash.2d 721, 733 P.2d 213 (1987). ⁵ Permitting Roller to recover underinsured motorist coverage would effectively put him in a better position than he would have been in if McKay had carried liability insurance. This court has stated:

The statutory purpose is to allow an injured party to recover those damages he or she would have received had the responsible party maintained adequate liability insurance. The injured party is not entitled to be put in a better position, by virtue of being struck by an underinsured motorist, than she would be had she been struck by a fully insured motorist.

(Citations omitted.) Keenan v. Industrial Indem. Ins. Co., 108 Wash.2d 314, 320-21, 738 P.2d 270 (1987).

Stonewall reasons that if McKay had carried automobile insurance, Roller would have received no coverage for the injuries he sustained because traditional policies do not cover intentional acts by the insured. We adopt this reasoning and conclude that to provide underinsured motorist coverage to Roller would effectively place him in a better position than he would have been in if McKay had "adequate liability insurance" coverage. This conclusion is furthered by Sayan v. United Servs. Auto. Ass'n, 43 Wash.App. 148, 716 P.2d 895, review denied, 106 Wash.2d 1009 (1986). In Sayan, one soldier's car accidentally hit another soldier's car while on the Fort Lewis military base. The plaintiff was not "legally entitled to recover" under his underinsured motorist policy because the tortfeasor soldier was immune from suit. Sayan, 43 Wash.App. at 156, 716 P.2d 895. Thus, the court did not permit the plaintiff to recover under his underinsured motorist policy because the court determined that it saw "no evidence that the Legislature intended for the victim of an uninsured motorist to receive compensation that he could not obtain even were the negligent driver in compliance with the financial responsibility statutes." Sayan, 43 Wash.App. at 156, 716 P.2d 895.

In the...