State Farm Mut. Auto. Ins. Co. v. Centennial Ins. Co.

• Decision Date: 09 December 1975
• Docket Number: No. 1486--II,1486--II
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Respondent, v. CENTENNIAL INSURANCE COMPANY, Appellant, and Gulf Insurance Company, Defendant.
• Court: Washington Court of Appeals

Page 541

14 Wn.App. 541

543 P.2d 645

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Respondent, v. CENTENNIAL INSURANCE COMPANY, Appellant, and Gulf Insurance Company, Defendant.

No. 1486--II.

Court of Appeals of Washington, Division 2.

Dec. 9, 1975.

Terrance D. Hannan, of Read, Wolfe, Hannan & Mercer, Vancouver, for appellant.

Duane Lansverk, of Landerholm, Memovich, Lansverk, Whitesides, Marsh, Morse & Wilkinson, Vancouver, Garfield R. Jeffers, Wenatchee, for respondent.

PETRIE, Chief Judge.

This is a dispute among three insurance companies to determine the potential liability, if any, each has for damages sustained by a driver of an automobile when his passenger accidentally shot and wounded him. The trial court held (1) that the driver's automobile liability insurance policy provided primary coverage, and (2) that the passenger's automobile liability insurance policy and the passenger's homeowner's liability insurance policy provided excess coverage. We hold that the driver's automobile liability insurance does not provide coverage for the accident.

Larry Wold wounded his hunting companion, Joseph Rogers, while the two men were returning home from a hunting excursion in Rogers' automobile. The accident occurred when passenger, Wold, remembered that he had failed to unload his rifle, as is customary, before entering the vehicle and attempted to eject the 3 remaining shells while the automobile was in motion. After the first 2 shells successfully cleared the chamber, the third misfired and hit the driver, Rogers, in the leg.

State Farm, Wold's insurer under a homeowner's policy, filed a complaint for declaratory judgment against Wold's automobile liability carrier, Gulf, and Rogers' automobile liability carrier, Centennial. By summary judgment the trial court determined that Centennial's policy provides primary coverage for Rogers' injuries while State Farm's and Gulf's policies provide excess coverage. Centennial appealed; Gulf did not appeal and did not participate in the appeal.

Centennial concedes--and therefore we do not decide--(1) Wold's riding in the vehicle as a passenger with Rogers' permission constituted a sufficient 'use' of the car so as to render Wold an additional insured under the definition of that term in Centennial's policy; See Gronquist v. Transit Casualty Co., 105 N.J.Super. 363, 252 A.2d 232 (1969); and (2) Centennial's policy does nto preclude coverage by reason of the fact that the Named insured, Rogers, is the potential claimant injured by an act of an additional insured. See State Farm Mutual Auto Ins. Co. v. Jacober, 10 Cal.3d 193, 110 Cal.Rptr. 1, 514 P.2d 953 (1973).

Centennial, however, denies liability. Both Gulf and Centennial agreed to pay, on behalf of their respective insureds, all sums which the insured shall become legally obligated to pay as damages because of bodily injury sustained by any person 'arising out of the ownership, maintenance or use, . . .' including the loading and unloading of any insured vehicle. RCW 46.29.490(2)(b) effectively mandates that motor vehicle liability policies contain the quoted phrase.

The words 'arising out of the use' are unambiguous and require a degree of causality between the injury and the use of the vehicle. Handley v. Oakley, 10 Wash.2d 396, 116 P.2d 833 (1941). Our concern is whether Wold's act of unloading his rifle in a moving vehicle while on a hunting trip provides the degree of causality sufficient to invoke coverage under Centennial's policy.

The terms of an insurance policy must be construed in light of the plain, ordinary and popular meaning of the words used. Riordan v. Commercial Travelers Mutual Ins. Co., 11 Wash.App. 707, 525 P.2d 804 (1974). The phrase 'arising out of the use' is not synonymous with 'while riding' or 'in the course of.' Such a construction would effectively delete from the contract the words 'arising out of.' Nor does the provision force the interpretation that before coverage can exist it must appear that the injury was the proximate result of the use of the automobile. Such a construction would do equal violence to the...