United Pac. Ins. Co. v. McCarthy, 2911--I

• Decision Date: 08 March 1976
• Docket Number: No. 2911--I,2911--I
• Parties: UNITED PACIFIC INSURANCE COMPANY, a corporation, Respondent, v. Roy McCARTHY et al., Appellants.
• Court: Washington Court of Appeals

Page 70

15 Wn.App. 70

546 P.2d 1226

UNITED PACIFIC INSURANCE COMPANY, a corporation, Respondent, v. Roy McCARTHY et al., Appellants.

No. 2911--I.

Court of Appeals of Washington, Division 1.

March 8, 1976.

Rehearing Denied April 29, 1976.

Krutch, Lindell, Donnelly, Dempcy, Lageschulte & Judkins, P.S., V. Robert Barker, Richard F. Krutch, Seattle, for appellant Rhyne.

Hacket, Beecher & Hart, Steven A. Branom, Seattle, for respondent United Pacific.

Keller, Rohrback, Waldo, Moren & Hiscock, Fred R. Butterworth, Seattle, for appellants McCarthy.

JAMES, Judge.

This is a declaratory judgment action brought by plaintiff, United Pacific Insurance Company, pursuant to RCW 7.24. United sought and received a favorable judgment with respect to its obligations arising out of an automobile liability insurance policy issued to defendant, Roy McCarthy. United contended and the trial judge held that the policy imposed no duty upon United to defend a personal injury action brought by defendant, Craig Rhyne, against McCarthy. The trial judge further held that the policy did not afford Rhyne uninsured motorist coverage. We agree.

The policy had been first purchased by McCarthy in 1968 and had been renewed semiannually thereafter. Roy McCarthy and Nelma McCarthy were married on August 11, 1972. Craig Rhyne is the natural son of Nelma McCarthy by a prior marriage.

Rhyne sustained personal injuries on October 13, 1972 whole helping McCarthy start his automobile. Rhyne was standing between McCarthy's car and another car attaching battery jumper cables when one of the cars was struck by a third car.

Rhyne brought suit against both McCarthy and the driver of the third car. Settlement by way of covenant not to sue was negotiated with the driver of the third car. Rhyne initially had joined his mother as a defendant but subsequently dismissed the action against her. The posture of that case, pending by stipulation until disposition of this appeal, is that Rhyne seeks a judgment againt Roy McCarthy and the marital community of Roy and Nelma McCarthy. Nelma McCarthy has no liability exposure as to her separate property.

United contends that coverage for Rhyne's claim against McCarthy is expressly excluded by the insurance contract. The exclusionary language upon which United relies is as follows:

Exclusions--what this Part of the policy does not cover.

This Part 1 ¹ does not apply to:

5. bodily injury to (a) any person, if such person is related by blood, marriage or adoption to and is a resident of the same household as (i) the insured or (ii) the person for whose use of the automobile or trailer the insured is legally responsible, or (b) the named insured;

The trial judge found as a fact that:

Craig Rhyne is related by blood to his mother, Nelma McCarthy, and by marriage to his stepfather, Roy McCarthy.

Finding of fact No. 2. It is undisputed that Rhyne was a resident of the McCarthy household at the time of the accident.

Defendants concede that Rhyne is related 'by blood' to his natural mother, Nelma McCarthy, but contend that that relationship does not invoke the exclusion because Nelma is not 'the' insured within the meaning of the exclusionary language. To reach this conclusion, defendants rely upon a 'severability of interests clause' contained in the policy. That clause is as follows:

The insurance afforded under this Part 1 applies separately to each insured against thom claim is made or suit is brought, but the inclusion of more than one insured shall not operate to increase the limits of (United's) liability.

Defendants argue that the effect of the 'severability' clause is to limit the application of the 'household or family exclusionary clause' to cases where The party being sued has the relationship with the injured party which requires exclusion. Defendants point out that Rhyne is not suing his mother to whom he Is related 'by blood.' He is suing Only Roy McCarthy. They contend that the relationship between Rhyne and Roy McCarthy is not within the definition of the exclusionary clause.

In support of this contention, defendants first assert that the trial judge's determination that Rhyne is related 'by marriage' to his stepfather, Roy McCarthy, is a conclusion of law rather than a finding of fact. We agree. The determination of the meaning of a term in an insurance contract is a question of law. Rew v. Beneficial Standard Life Ins. Co., 41 Wash.2d 577, 250 P.2d 956, 35 A.L.R.2d 891 (1952); State Farm Mut. Auto. Ins. Co. v. Phillips, 2 Wash.App. 169, 467 P.2d 189 (1970).

Defendants urged us to determine that as a matter of law the exclusionary clause is inoperative because Rhyne is not related to Roy McCarthy by blood, adoption, or marriage. They reason that (1) Rhyne is not McCarthy's natural son, (2) Rhyne and McCarthy are not married to each other, and (3) McCarthy did not adopt Rhyne.

A basic rule of the law of contracts is that the terms used in an insurance policy are to be understood in their plain, ordinary, and popular sense. Kane v. Order of United Commercial Travelers of America, 3 Wash.2d 335, 100 P.2d 1036 (1940). While it is true that ambiguous language will be construed to favor an insured, courts should not find ambiguity where none exists. Rew v. Beneficial Standard Life Ins. Co., supra. Our inquiry must be, therefore, whether an average person, in reading the exclusionary clause in McCarthy's policy, would understand that Rhyne's claim would not be covered.

By dictionary definition, a 'relative' is 'a person connected with another by blood or affinity.' Merriam-Webster Third New Int'l Dictionary (1969). 'Affinity' means 'relationship by marriage (as between a husband and his wife's blood relatives).' (Italics ours.) Merriam-Webster Third New Int'l Dictionary (1969). The word 'step' is used to designate one who is 'related by virtue of a remarriage (as of a parent) and not by blood.' (Italics ours.) Merriam-Webster Third New Int'l Dictionary (1969).

We find no ambiguity in the language of the exclusionary clause. We are satisfied that the average person would understand that by his mother's marriage, Rhyne became 'related' to his stepfather, McCarthy.

The language of insurance policies is to be interpreted in accordance with the way it would be understood by the average man, rather than in a technical sense. Zinn v. Equitable Life Ins. Co., 6 Wash.2d 379, 107 P.2d 921 (1940).

Dairyland Ins. Co. v. Ward, 83 Wash.2d 353, 358, 517 P.2d 966, 969 (1974). Because of our conclusion that Rhyne is related to Roy McCarthy 'by marriage,' we do not reach nor consider defendants' contention as to the effect of the severability clause.

As an alternative to their contention that Rhyne is not subject to the 'household or family' exclusionary clause, defendants assert that Rhyne is entitled to...