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

• Decision Date: 22 June 1978
• Docket Number: No. 44550,44550
• Parties: David STRUNK, Administrator of the Estate of Bonnie Harness, Deceased; and Billy Gene Karnell and Mabel Karnell, guardians of the person and estate of Gerald Alan Harness and Deborah Lynn Harness, By Their Personal Representative, Respondents, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation, Appellant.
• Court: Washington Supreme Court

Page 210

90 Wn.2d 210

580 P.2d 622

David STRUNK, Administrator of the Estate of Bonnie Harness Deceased; and Billy Gene Karnell and Mabel Karnell guardians of the person and estate of Gerald Alan Harness and Deborah Lynn Harness, By Their Personal Representative Respondents, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation, Appellant.

No. 44550.

Supreme Court of Washington,En Banc.

June 22, 1978.

Armstrong, Vander Stoep & Remund, J. A. Vander Stoep, Chehalis, for appellant.

Kenneth W.

Weber, Vancouver, for respondents.

BRACHTENBACH, Associate Justice.

This case poses the question whether an insured motorist becomes an uninsured motorist when policy limits coverage is exhausted by settlement with two claimants leaving three claimants without recovery from insurance proceeds.

The facts are that an automobile collision resulted in the deaths of a husband, his wife and their year-old son. Two of their children survived, one injured seriously and permanently. The negligent driver was insured for the statutory minimum of $15,000 per person and $30,000 per occurrence. It is stipulated that the other driver was solely at fault. The insurance carrier for the negligent driver settled the claims on behalf of the deceased husband and the deceased son for $15,000 each, thereby exhausting coverage. This left the claims on behalf of the deceased mother and the injured surviving children without insurance compensation from the negligent driver.

It is stipulated that the deceased wife and surviving injured children were "insureds" within the defendant insurance company's automobile insurance policy which included uninsured motorist coverage as required, absent waiver, by RCW 48.22.030.

Faced with no recovery under the negligent driver's liability insurance policy, the plaintiffs sued defendant insurance company claiming (a) they were insureds under defendant's policy (admitted) and (b) in the language of the statute, they were entitled to recover damages from the owner or operator of an "uninsured" motor vehicle. The plaintiffs were successful in their motion for summary judgment, the trial court holding that since the negligent driver's liability insurance coverage had been exhausted, the plaintiffs were the victims of an uninsured motorist and entitled to recover under their own policy. We reverse.

The central question is the meaning of the statute, RCW 48.22.030, which mandates uninsured motorist coverage absent waiver. We look to the statute rather than the defendant's policy language because of our clear declaration that the policy terms cannot diminish the statutory minimum. Touchette v. Northwestern Mutual Ins. Co., 80 Wash.2d 327, 494 P.2d 479 (1972). The statute and the pertinent insurance policy provisions are quoted in the appendix. We note that neither has much to offer as to intent, clarity of expression or definition of controlling terms.

Nonetheless the single question is whether these plaintiffs are legally entitled to recover damages from the owner or operator of an uninsured motor vehicle. The simple answer is that these plaintiffs were killed or injured by the operator of an insured vehicle. No question but that the motor vehicle operator was insured in an amount insufficient to compensate these plaintiffs for their damages, but also there is no question but that the driver was insured in the amounts required by statute. The tort-feasor was underinsured in her ability to respond to all of the horrendous damage caused, but she was not uninsured.

We conclude that there is no room for construing the statute to mean that an insured motorist is insured as to one claimant but ephemerally uninsured when the insurance coverage is exhausted. In so deciding we join the great majority of courts which have considered this problem. See Wilbourn v. Allstate Ins. Co., 293 Ala. 466, 305 So.2d 372 (1974); Travelers Ins. Co. v. Bouzer, 39 Cal.App.3d 992, 114 Cal.Rptr. 651 (1974), petition for hearing denied by Supreme Court, August 28, 1974; Chafin v. Aetna Ins. Co., 550 F.2d 575 (10th Cir. 1976); Chandler v. Government Employees Ins. Co., 342 F.2d 420 (5th Cir. 1965); Lund v. State Farm Mut. Auto. Ins. Co., 342 F.Supp. 917 (W.D.Okl.1972); Simonette v. Great American Ins. Co., 165 Conn. 466, 338 A.2d 453 (1973); Golphin v. Home Indem. Co., 284 So.2d 442 (Fla.Dist.Ct.App.1973); Smiley v. Estate of Toney, 44 Ill.2d 127, 254 N.E.2d 440 (1969); Detrick v. Aetna Cas. & Sur. Co., 261 Iowa 1246, 158 The plaintiffs rely upon four minority cases which uphold their position. Porter v. Empire Fire & Marine Ins. Co., 106 Ariz. 274, 475 P.2d 258, modified on other grounds, 106 Ariz. 345, 476 P.2d 155 (1970); Palisbo v. Hawaiian Ins. & Guar. Co., Haw., 547 P.2d 1350 (1976); Gorton v. Reliance Ins. Co., 137 N.J.Super. 558, 350 A.2d 77 (1975), petition for cert. granted, 70 N.J. 273, 359 A.2d 485 (1976); American Mut. Ins. Co. v. Commercial Union Ins. Co., 116 N.H. 210, 357 A.2d 873 (1976). The common thread to these cases is that their reasoning is minimal and conclusionary. That each insured on the highways should have protection against an uninsured motorist to the extent of the statutory minimum is desirable but such mandate must come from the legislature, not from this court under the guise of interpreting the uninsured motorist statute.

N.W.2d 99 (1968); McMinn v. New Hampshire Ins. Co., 276 So.2d 682 (Miss.1973); Brake v. MFA Mut. Ins. Co., 525 S.W.2d 109 (Mo.Ct.App.1975), cert. denied, 423 U.S. 894, 96 S.Ct. 192, 46 L.Ed.2d 126 (1975); Simmons v. Hartford Accident & Indem. Co., 543 P.2d 1384 (Okl.1975); Lund v. Mission Ins. Co., 270 Or. 461, 528 P.2d 78 (1974); Kemp v. [580 P.2d 624] Fidelity & Cas. Co., 504 S.W.2d 633 (Tex.Civ.App.1973); Shelby Mut. Ins. Co. v. Smith, 45 Ohio St.2d 66, 341 N.E.2d 597 (1976); reversing on appeal, Hanlon v. Buckeye Union Ins. Co., 73 Ohio Op.2d 267, 324 N.E.2d 598 (C.P.Cuyahoga County 1975).

Our conclusion as to legislative intent is buttressed by two actions taken by the legislature. In 1977 it amended RCW 48.22.030 to provide coverage against under insured motorists. Substitute House Bill No. 1348, 45th Session, 1st Ex.Sess., 1977, vetoed by the Governor July 15, 1977. The amendment was such a significant change that it went to a free conference prior to its enactment.

This legislative amendment demonstrates that the existing law, applicable to this case, did not contemplate coverage as to the under insured motorist. This conclusion comports with our rule that when a material change in a statute is The second point about the legislative action is that the legislature obviously viewed the statute more narrowly than plaintiffs urge because it enacted a separate section defining "uninsured" to include coverage by an insolvent carrier unable to make payments within the limits of liability. RCW 48.22.040. If the statute were intended to have the broad, liberal interpretation contended for by the plaintiffs, it would hardly be necessary to enact a section that being insured by an insolvent insurer constitutes being uninsured. If a motorist is insured by an insolvent insurer, it is rather obvious that he is not insured at all. Yet the legislature deemed it necessary to define specifically "uninsured" to include insurance by an insolvent carrier. Surely if the legislature intended to include the elusive and liberal notion of "under insured" within the meaning of "uninsured" it hardly needed to define "uninsured" to include coverage by an insolvent carrier.

made, a change in legislative intent is presumed. In re Bale, 63 Wash.2d 83, 89, 385 P.2d 545 (1963).

Since it is not our function or power to rewrite either the statute or the insurance policy, the judgment must be reversed. It is so ordered.

ROSELLINI, STAFFORD, DOLLIVER and HICKS, JJ., concur.

APPENDIX

RCW 48.22.030 provides:

"On and after January 1, 1968, no new policy or renewal of an existing policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state 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 and except that, unless the named insured requests such coverage in writing, such coverage need not be provided in or supplemental to a renewal policy where the named insured had rejected the coverage in connection with a policy previously issued to him by the same insurer."

The pertinent insurance policy provisions provide:

"Damages for Bodily Injury Caused by Uninsured Automobiles. To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.

. . .itl

"Uninsured Automobile means:

"(1) a land motor vehicle with respect to the ownership, maintenance or use of which there is in at least the amounts specified by the financial responsibility law of the state in which the...