Transamerica Ins. Group v. United Pac. Ins. Co.

• Decision Date: 05 April 1979
• Docket Number: No. 45640,45640
• Parties: TRANSAMERICA INSURANCE GROUP, Respondent, v. UNITED PACIFIC INSURANCE COMPANY, Appellant.
• Court: Washington Supreme Court

Page 21

92 Wn.2d 21

593 P.2d 156

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

No. 45640.

Supreme Court of Washington, En Banc.

April 5, 1979.

Rush & Kleinwachter, William J. Rush, Tacoma, for appellant.

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

STAFFORD, Justice.

Plaintiff Transamerica Insurance Group (Transamerica) appealed the dismissal of its claim for reimbursement from defendant United Pacific Insurance Company (United). The trial court was reversed in a nonunanimous decision of the Court of Appeals and defendant appeals. We affirm the Court of Appeals.

Albert Savisky and Jack Rea had been elk hunting for several days. While driving in Savisky's Scout truck, both men had their rifles in a gun rack affixed to the inner wall of the cab. At the time of the accident giving rise to this action, Rea's rifle was loaded in violation of RCW 77.16.250 which prohibits the carrying of a loaded rifle in a vehicle.

Rea informed Savisky, the driver, that he wanted to have his gun available in case they saw an elk. Savisky brought his truck to a complete stop. While the vehicle was stationary, Savisky leaned forward thus enabling Rea to reach behind him. Rea removed the rifle's muzzle from the gun rack and as he did so the weapon discharged. Savisky was hit by a bullet and seriously injured. The trial court found that during the process of removing the weapon from the gun rack the rifle discharged when the trigger activated the firing mechanism. No finding was made concerning what had activated the trigger. The court's oral opinion, however, indicates clearly that it believed the rifle discharged when the trigger brushed against the rear bracket of the gun rack. Since this portion of the oral opinion is supported by substantial evidence and is consistent with the written findings, we may accept it as explanatory of that material fact. Saddler v. State, 66 Wash.2d 215, 220, 401 P.2d 848 (1965); Gay v. Cornwall, 6 Wash.App. 595, 599, 494 P.2d 1371 (1972); Stevens v. Stevens, 4 Wash.App. 79, 480 P.2d 238 (1971).

Savisky sued Rea and Transamerica undertook Rea's defense under the terms of his homeowner's insurance policy. Eventually the matter was settled for an amount within the policy limits. Thereafter, Transamerica filed this action against United seeking reimbursement or indemnity. United was Savisky's automobile liability carrier at the time of the accident. Prior to trial the parties stipulated that if the United automobile policy covered the accident at all, United's coverage would be primary to any coverage by Transamerica.

After a bench trial the court found Savisky had been injured while Rea was in the process of "unloading" his gun from the vehicle. Because such an accident was deemed not within the coverage of the United policy, ¹ Transamerica's claim was denied and a judgment of dismissal was entered in favor of United.

The Court of Appeals reversed the trial court and directed judgment for Transamerica. United appealed as a matter of right from the nonunanimous decision of the Court of Appeals. RAP 13.2(a).

Basically three issues were raised in the Court of Appeals: (1) whether section 3 of the Persons Insured clause of the United policy ² is applicable, I. e., the "loading-unloading" provision; (2) whether the accident arose out of the "use" of the vehicle as contemplated in the United policy; and (3) whether the United policy violates RCW 46.29.490(2)(b) and RCW 48.18.130(2).

Concerning the first issue we note the trial court ruled that because Rea's attempt to remove his rifle from the gun rack amounted to "unloading" the truck, coverage was excluded under that portion of the United policy set forth in footnote 1. However, a review of the authorities makes it clear the phrase "loading and unloading", as used in the United policy, has been the subject of serious disagreement among courts that have considered it. There appear to be two main views the "coming to rest" doctrine and the more liberal "complete operations" theory. The two approaches have been succinctly summarized in Allstate Ins. Co. v. Valdez, 190 F.Supp. 893, 894 (E.D.Mich.1961):

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.)

Although the "loading-unloading" controversy was mentioned briefly in Aetna Ins. Co. v. Kent, 85 Wash.2d 942, 540 P.2d 1383 (1975) we have adopted neither view. Under the circumstances, we do not need to choose between them in this case. Even considering the view most favorable to United, I. e., the more expansive "complete operations" theory, there is no substantial evidence to support the trial court's findings that the accident occurred "during an unloading process."

United contends that because Rea wanted to have his rifle readily available in the event he saw an elk and was attempting to remove the weapon from the gun rack for that purpose he was preparing to unload the rifle from the vehicle. We do not agree. At best it evidenced an attempted repositioning of the rifle in the vehicle for Possible use if, At an unknown time in the future, several other events should occur, E. g., (1) an elk was seen; (2) Rea decided the shot was worthwhile; (3) Savisky decided to stop the vehicle; and (4) Rea decided to debark and shoot, or (5) Rea decided to shoot from the stopped or moving vehicle. Under the circumstances there is no evidence to support even an inference that Rea was engaged in the "unloading process" or even "preparing to unload" the vehicle. In this regard the Court of Appeals is affirmed.

The second issue is whether the accident arose out of the "use" of the vehicle as contemplated by the United policy. The policy provides, in part, that United 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 or Use of the owned automobile or any non-owned automobile."

(Italics ours.) The term "use" usually is construed to include all proper uses of an automobile. 7 J. Appelman, Insurance Law and Practice, § 4316 at 142 (1966); 12 G. Couch, Cyclopedia of Insurance Law § 45:64 at 153 (2d ed. R. Anderson 1964). In order to arise out of the "use" of the vehicle it is not necessary that the use be the proximate cause of the accident. It is only necessary that there be a Causal connection between the use and the accident. State Farm Ins. Co. v. Centennial Ins. Co., 14 Wash.App. 541, 543 P.2d 645 (1975); 12 Cyclopedia of Insurance Law, supra § 45:56. However, the fact that a vehicle is the mere "situs" of an accident is not sufficient, standing alone, to bring the occurrence within the coverage of a policy such as this. Handley v. Oakley, 10 Wash.2d 396, 116 P.2d 833 (1941); State Farm Ins. Co. v. Centennial Ins. Co., supra.

Consequently, the question is whether the vehicle itself or permanent attachments to the vehicle causally contributed in some way to produce the injury. The cases concerning gunshot wounds received in and around automobiles place particular importance on some physical involvement of the vehicle itself or some permanently attached part thereof. Where such physical involvement was absent, the vehicle has been deemed the mere situs of the accident and thus the accident has been construed to fall outside the coverage of the policy. Handley v. Oakley, supra; State Farm Ins. Co. v. Centennial Ins. Co., supra. For example, in State Farm the gunshot occurred within the vehicle while the passenger attempted to empty the shells from his gun as the vehicle was moving. There is nothing to show that the movement of the vehicle had any causal connection with the gun's discharge; that the gun touched any part of the vehicle; or that any factor contributed to the discharge other than the passenger's abortive attempt to empty the weapon. Thus, quite properly, the vehicle was deemed no more than the situs of the accident. Other jurisdictions have reached a similar conclusion when the factual pattern of the accident involved no causal connection between the discharge of the gun and a condition of the vehicle itself, some permanent attachment, or some aspect of its operation. Azar v. Employees Cas. Co., 178 Colo. 58, 495 P.2d 554 (1972); Mason v. Celina Mut. Ins. Co., 161 Colo. 442, 423 P.2d 24 (1967); National Union Fire Ins. Co. v. Bruecks, 179 Neb. 642, 139 N.W.2d 821 (1966); Brenner v. Aetna Ins. Co., 8 Ariz.App. 272, 445 P.2d 474 (1968).

A different result has been reached where, as here, the factual pattern of the accident involved some causal relationship between a condition of the vehicle, a permanent attachment thereto, or some aspect of its operation. In such event the vehicle has been considered more than the mere situs of the occurrence and liability has attached under an insurance contract providing for coverage of an accident arising out of use of the automobile. Fidelity & Cas. Co. v. Lott, 273 F.2d 500 (5th Cir. 1960). (Named insured, attempting to shoot a deer, rested rifle across roof of parked automobile and fired. Bullet, falling to clear curve of the roof, deflected and killed passenger inside. Held causal connection, accident arose out of use of vehicle.) Laviana v. Shelby Mut....