Transamerica Ins. Group v. United Pac. Ins. Co., 2569-II

• Decision Date: 17 May 1978
• Docket Number: No. 2569-II,2569-II
• Citation: 579 P.2d 991,20 Wn.App. 138
• Parties: TRANSAMERICA INSURANCE GROUP, Appellant, v. UNITED PACIFIC INSURANCE COMPANY, Respondent.
• Court: Washington Court of Appeals

Page 138

20 Wn.App. 138

579 P.2d 991

TRANSAMERICA INSURANCE GROUP, Appellant, v. UNITED PACIFIC INSURANCE COMPANY, Respondent.

No. 2569-II.

Court of Appeals of Washington,Division 2.

May 17, 1978.

Richard J. Jensen, Mark G. Honeywell, Joseph F. Quinn, Gordon, Thomas, Honeywell, Malanca, Peterson & O'Hern, Tacoma, for appellant.

William J. Rush, Tacoma, for respondent.

PETRIE, Judge.

Plaintiff, Transamerica Insurance Group, appeals from the judgment dismissing its claim for reimbursement from another carrier. We reverse and, because of the agreement as to damages, direct entry of judgment in favor of Transamerica.

On November 5, 1971, Albert Savisky and Jack Rea were riding in Savisky's 4-wheel drive vehicle; the two men were in the mountains on an elk-hunting expedition. Upon entering the vehicle, both men had placed their rifles in the gun rack which was attached to the left side of the vehicle behind the driver's seat. Rea told Savisky, the driver, that he wanted to have his gun available and ready to use in case they spotted some elk. Savisky then stopped the vehicle and leaned forward, over the steering wheel, so that Rea could reach the weapon and remove it from the rack. After the muzzle of the rifle had been lifted out of the rack, the gun discharged. Savisky was hit by the bullet and was seriously injured.

Savisky initiated an action for damages against Rea in the Superior Court for Pierce County. Transamerica undertook to defend Rea pursuant to the terms of his homeowner's insurance policy. Eventually, Savisky settled for $47,500, an amount within the policy limits. Transamerica then filed the present action for reimbursement or indemnity against the United Pacific Insurance Company, Savisky's automobile liability carrier at the time of the accident. Prior to trial, the parties stipulated that if the automobile policy covered this accident at all, coverage would be primary.

After a bench trial, the court found that Savisky was injured while Rea was in the process of unloading the gun from the vehicle. Because such an accident would not be covered by the United Pacific policy, ¹ the trial court concluded that Transamerica's claim for reimbursement was not well-founded and entered judgment dismissing the action.

Three of the assignments of error raised by Transamerica challenge the trial court's findings and conclusions concerning the "loading and unloading" issue. Transamerica contends (1) the finding that the accident occurred during the unloading of the vehicle is not supported by substantial evidence; (2) section 3 of the policy, restricting coverage when injury occurs while loading and unloading automobiles, is ambiguous and must be construed against United Pacific; and (3) the restriction on persons insured in section 3 violates the standard provision requirements of the insurance code, RCW 48.18.130(2). We agree with Transamerica's position on the substantial evidence question, and therefore need not address the remaining two arguments.

The scope of the phrase "loading and unloading" has been a subject of disagreement among courts which have considered its meaning; currently courts are divided between two theories the "coming to rest" doctrine, and the more liberal "complete operations" view. 12 R. Anderson, Couch on Insurance 2d, § 45:123 et seq. (1964). The distinction between these two theories was succinctly summarized by the court in Allstate Ins Co. v. Valdez, 190 F.Supp. 893 (U.S.D.C., E.D.Mich.1961). The court stated:

Under the former category, (coming to rest) "loading" would cover only the period during which the article has left its place of rest and is in the process of being carried to or placed in the vehicle. Conversely, "unloading" terminates when the article is no longer being physically lifted from the vehicle but has actually reached a place of rest. . . .

Broader in scope than the "coming to rest" theory, the "complete operation" interpretation covers the entire process involved in the movement of the article, thereby omitting any distinction between "loading" and preparatory activities or "unloading" and "delivery." . . .

(Citations omitted.) Id. at 894-95. See also, 7 Am.Jur.2d Automobile Insurance § 88 (1963); 95 A.L.R.2d 1122 (1964).

Although the "loading and unloading" controversy was noted and briefly discussed in Aetna Ins. Co. v. Kent, 85 Wash.2d 942, 540 P.2d 1383 (1975), this jurisdiction has not yet adopted either the "coming to rest" or "complete operation" theory of liability. We, too, need not choose between the two views. Nevertheless, even under the more expansive "complete operations" view, we find nothing substantial in the record to support the trial court's determination that the accident occurred "during an unloading process."

United Pacific asserts that because Rea wanted to have his gun available in order to be able to react quickly upon spotting an elk, coupled with the undisputed finding that the muzzle of the gun had been removed from the gun rack at the time the accident occurred, the court's determination on this issue was correct. That evidence merely establishes an attempted repositioning of the weapon in the vehicle for possible use if, in the future, several other events occur and other decisions are made: The hunters would have to spot an elk, decide that a shot would be worthwhile, decide to stop, and finally decide to debark rather than shoot while seated in the vehicle. There is no evidence in the record to support even an inference that they were preparing to unload. Accordingly, we conclude that the finding was not supported by substantial evidence and, therefore, reverse the trial court on that issue.

Despite having resolved the loading and unloading issue in favor of Transamerica, we must still address Transamerica's final contention that, as a matter of law, the accident arose out of the "use" of the vehicle. The United Pacific policy states that the company will pay on behalf of the insured

all sums which the insured shall become legally obligated to pay as damages . . .

arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile.

(Emphasis added.) Transamerica correctly concedes that liability attaches only if there is some causal connection between the use of the vehicle and the accident. The...