Signal Ins. Co. v. Walden
| Decision Date | 28 December 1973 |
| Docket Number | No. 1839--I,1839--I |
| Citation | 10 Wn.App. 350,517 P.2d 611 |
| Parties | SIGNAL INSURANCE COMPANY, a foreign corporation, Appellant, v. Edward WALDEN, Individually, and as Guardian ad Litem for Carroll W. Walden, a minor, Respondents. |
| Court | Washington Court of Appeals |
Lane, Powell, Moss & Miller, David C. Lycette, Seattle, for appellant.
Riach, Gese, Seather & Mueller, Vern J. Seather, Lynnwood, for respondents.
This is an appeal from a judgment of dismissal in an action brought by Signal Insurance Company against Edward Walden and Carroll W. Walden, for a declaration that a one-year limitation provision upon uninsured motorist coverage in an automobile insurance policy which it had issued, was valid.
The agreed facts are that Carroll W. Walden, the minor son of Edward Walden, was injured when an automobile in which he was riding as a passenger, and which was owned by Edward D. Parris, collided with another automobile being driven by Marvin M. Johnson. Signal's insurance policy had been issued to Parris and extended protection to young Walden if his injuries were caused by an uninsured motorist. After the accident, the driver of the other vehicle, Johnson, was hospitalized for a short period and then absented himself from the state without filing an accident report with the Department of Motor Vehicles, as required by RCW 46.52.030. Investigators employed by both parties made concerted efforts to locate Johnson without success. By the time the Waldens took affirmative action against Signal, more than one year had elapsed.
The basis of Signal's contention that it is not liable to the Waldens is the following limitation in the uninsured motorist section of the policy:
No cause of action shall accrue to the insured under this Part unless within one year from the date of the accident:
(1) Suit for bodily injury has been filed against the uninsured motorist, in a court of competent jurisdiction, or (2) Agreement as to the amount due under this Part has been concluded, or
(3) The insured has formally instituted arbitration proceedings.
The trial court declared that the one-year limitation was invalid because it was against public policy and, also, was inapplicable during the minority of young Walden. The court also concluded that the diligent although unsuccessful search for Johnson gave rise to the presumption that he was uninsured.
The statute requiring uninsured motorist coverage is RCW 48.22.030, and reads in part:
On and after January 1, 1968, no new policy or renewal of an existing policy . . . shall be delivered or issued for delivery in this state with respect to any motor vehicle . . . unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in RCW 46.29.490, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom, except that the named insured may be given the right to reject such coverage . . .
Signal's contention is that because the insured may reject the uninsured motorist coverage when the policy is offered, that section may be limited, or eliminated entirely, by bargaining of the parties.
The contract consists of four pages measuring 8 1/2 11 inches, upon which are printed over 12,000 words. According to Signal's counsel, the forms are printed in the millions. Only the facsimile signature of Signal's president and secretary appear; the insured's name is not in the contract. There is no room for change by interlineation, and one of the conditions of the policy is that such change must be made by an endorsement issued by the company. A declaration page, not in the record, is incorporated by reference. Apparently, the particular coverage of the policy can be ascertained by the charges entered on this page. There is nothing in the record which suggests that the one-year limitation in the uninsured motorist section of the policy is in any way negotiable. The conclusion is inescapable that the protection afforded against an uninsured motorist is to be accepted or rejected by the insured as a package. See 7 J. Appleman, Insurance Law and Practice, § 4331 (Supp.1972).
RCW 48.22.030 was enacted for a purpose, and that purpose has been described by...
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