Sperry v. Maki, 7724-1-III

• Court: Court of Appeals of Washington
• Citation: 740 P.2d 342,48 Wn.App. 599
• Docket Number: No. 7724-1-III,7724-1-III
• Parties: Jean SPERRY and Donald Sperry, wife and husband, Respondents, v. Doug and Greta MAKI, husband and wife, Tri-City Auto Center, Inc., Wayne and Chris Reynolds, d/b/a Vista Flight Center, Defendants, and Rocky Mountain Fire and Casualty Co., Inc., Appellant.
• Decision Date: 23 July 1987

Page 599

48 Wn.App. 599 740 P.2d 342 Jean SPERRY and Donald Sperry, wife and husband, Respondents,
v.
Doug and Greta MAKI, husband and wife, Tri-City Auto Center,
Inc., Wayne and Chris Reynolds, d/b/a Vista Flight
Center, Defendants,
and
Rocky Mountain Fire and Casualty Co., Inc., Appellant. No. 7724-1-III. Court of Appeals of Washington,
Division 3, Panel One. July 23, 1987.

Page 600

Neil S. Gladstone, Seattle, for appellant.

Ronald L. Skala, Mark A. Kunkler, Weeks, Dietzen & Skala, Yakima, for respondents.

MUNSON, Judge.

Rocky Mountain Fire and Casualty Company (Rocky Mountain) appeals a summary judgment in favor of its insureds, Jean and Donald Sperry. The Superior Court held coverage existed under the underinsured [740 P.2d 343] motorist provision of the Sperrys' policy for damages sustained by them when they collided with a Cessna 150 aircraft which was in the process of making an emergency landing on a public highway. We reverse.

The Sperrys brought this negligence action for damages against the pilot, Doug Maki, airplane owners Reynolds and Tri-City Auto Center, and Rocky Mountain. The complaint alleged the aircraft was a motor vehicle for purposes of underinsured motorist coverage. Both the Sperrys and Rocky Mountain moved for summary judgment on the issue of coverage. The Superior Court granted the Sperrys' motion, reasoning in its oral opinion: "[O]nce an airplane is used on our public highways whether in landing, taking off, taxiing or crossing a roadway ... it becomes a motor vehicle for the purposes of our Uninsured Motorist Act ..." From that determination, Rocky Mountain appeals.

RCW 48.22.030 provides:

(1) "Underinsured motor vehicle" means a motor vehicle with respect to ... which either no bodily injury or property damage liability bond or insurance policy applies at the time of an accident, or with respect to which the sum of the limits of liability ... is less than the applicable damages which the covered person is legally entitled to recover.

(Italics ours.) At oral argument, counsel for Rocky Mountain stipulated the definition of "underinsured motor vehicle" contained in the Sperrys' policy was the same as the statutory definition contained in RCW 48.22.030(1). Consequently, our analysis focuses on the legal question of

Page 601

whether an aircraft falls within the definition of "underinsured motor vehicle" as that term is used in RCW 48.22.030(1).

Neither Title 48, "Insurance," nor chapter 48.22 in particular contains a further definition of the term "motor vehicle." Title 46 relates to "motor vehicles." RCW 46.04.320 defines "motor vehicle" as

every vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails.

RCW 46.04.670 further defines "vehicle" as including

every device capable of being moved upon a public highway and in, upon, or by which any persons or property is or may be transported or drawn upon a public highway, excepting devices moved by human or animal power or used exclusively upon stationary rails or tracks, except that mopeds shall be considered vehicles or motor vehicles for the purposes of chapter 46.12 RCW, but not for the purposes of chapter 46.70 RCW.

See also RCW 47.04.010(18) and (40).

In construing a term in a statute, our duty is to give expression to the Legislature's intent. See Millers Cas. Ins. Co. v. Briggs, 100 Wash.2d 1, 5, 665 P.2d 891 (1983). In determining that intent, the meaning of a particular word or term is derived by how it is commonly, popularly, or ordinarily used. Certain British Underwriters at Lloyd's of London, England v. Jet Charter Serv., Inc., 789 F.2d 1534, 1536 (11th Cir.1986); Federated Am. Ins. Co. v. Strong, 102 Wash.2d 665, 670, 689 P.2d 68 (1984). The interpretation of a term of broad and general meaning depends upon the circumstances and context in which that term is used. National Union Fire Ins. Co. v. Zuver, 47 Wash.App. 540, 544, 736 P.2d 675 (1987). Although this court is required to construe an ambiguous term in an insurance policy in favor of the insured, we are not permitted to modify the unambiguous meaning of language contained in a policy or statute under the guise of construing it. See Britton v. Safeco Ins. Co. of Am., 104 Wash.2d 518, 528, 707 P.2d 125 (1985); Thompson

Page 602

v. Lewis Cy., 92 Wash.2d 204, 207, 595 P.2d 541 (1979); Viking Ins. Co. v. Zinkgraf, 47 Wash.App. 645, 647, 737 P.2d 268 (1987). Applying these principles to the terms "motor vehicle" or "vehicle," we conclude an aircraft does not fall within either term as they are commonly and ordinarily used.

First, Webster's Third New International Dictionary 1476 (1969) defines "motor vehicle" as "an automotive vehicle not operated on rails; esp: one with rubber tires for use on highways." This definition confirms[740 P.2d 344] the every day, commonsense understanding that "motor vehicle" applies to a class of vehicles that includes cars, trucks, buses, and the like. This understanding is confirmed by the annotation entitled Airplane as Within Terms "Vehicle," "Motor Vehicle," Etc., 165 A.L.R. 916 (1946) which provides: "Although the result is always contingent on the particular wording involved, it has been almost invariably held, in the construction of statutes and regulations, that airplanes are not within the terms 'vehicles,' 'motor vehicles,' etc."

The Sperrys fare no better with respect to whether an aircraft falls within the more general term "vehicle." Although etymologically the term is broad enough to cover airplanes, "vehicle" is ordinarily understood to mean a machine designed to move solely on the land. As noted over 50 years ago by Justice Holmes in McBoyle v. United States, 283 U.S. 25, 26, 51 S.Ct. 340, 340, 75 L.Ed. 816 (1931), "in every day speech, 'vehicle' calls up the picture of a thing moving on land." Accord, Certain British Underwriters, at 1537 (citing authorities); but cf. McReynolds v. Municipal Court, 207 N.W.2d...