Washington Ins. Guaranty Ass'n v. Hill, 2124-III

• Decision Date: 31 January 1978
• Docket Number: No. 2124-III,2124-III
• Citation: 574 P.2d 405,19 Wn.App. 195
• Parties: WASHINGTON INSURANCE GUARANTY ASSOCIATION, Plaintiff, v. Harold HILL and Jane Doe Hill, husband and wife, Appellants, and State Farm Ins. Co., Don Miller, Gerald Hill and Jane Doe Hill, husband and wife, and Dairyland Ins. Co., Respondents.
• Court: Washington Court of Appeals

Page 195

19 Wn.App. 195

574 P.2d 405

WASHINGTON INSURANCE GUARANTY ASSOCIATION, Plaintiff, v. Harold HILL and Jane Doe Hill, husband and wife, Appellants and State Farm Ins. Co., Don Miller, Gerald Hill and Jane Doe Hill, husband and wife, and Dairyland Ins. Co., Respondents.

No. 2124-III.

Court of Appeals of Washington, Division 3.

Jan. 31, 1978.

Rehearings Denied Feb. 28, 1978.

Warren L. Dewar, Jr., Velikanje, Moore & Shore, Yakima, for appellants.

Alan A. McDonald, Halverson, Applegate & McDonald, Yakima, for respondent, Washington Insurance Co.

Norman R. Nashem, Jr., Nashem, Prediletto, Schussler & Halpin, Yakima, for respondents State Farm Ins. Co. and Gerald Hill and wife.

J. W. McArdle and Alan Campbell, McArdle, Dohn, Talbott & Campbell, Yakima, for respondent Dairyland Ins. Co.

Fred E. Porter, Porter, Schwab, Royal & Edmondson, Yakima, for respondent, Don Miller.

McINTURFF, Judge.

Harold Hill appeals from a summary judgment entered in favor of Dairyland Insurance Co. in an action involving automobile liability policies issued by the company. Two issues are presented: (1) whether the insurance policies extended uninsured motorist coverage to Mr. Hill despite his failure to give notice of an accident within the time required by the policies; and (2) whether the policies' exclusions of uninsured motorist coverage from an insured while occupying a vehicle owned by himself, but not insured under the policies, is void for public policy reasons. The court answered both questions in favor of the insurer. We reverse and remand.

Mr. Hill was a resident in the household of his father-in-law who was the named insured under three separate automobile liability insurance policies issued by Dairyland Insurance Co. Each policy contained the same uninsured motorist coverage for relatives who were residents of the same household of the named insured.

Mr. Hill, as a passenger in a vehicle owned by him but driven by his brother, was seriously injured in an attempt to avoid a "phantom" hit-and-run vehicle. There was no physical impact between the autos. The insurance policies required that, within 30 days of the accident, a claimant in a hit-and-run accident file a statement under oath that he has a cause of action arising out of the accident for damages against a person or persons whose identity is unascertainable and setting forth the supporting facts.

This court recently considered an insurance policy provision which precluded liability unless the insurer was given notice of the accident or occurrence within 60 days afterward. Pulse v. Northwest Farm Bureau Ins. Co., 18 Wash.App. 59, 61, 566 P.2d 577 (1977), petition for review denied Dec. 16, 1977. There we held that the breach of such a provision is a defense only if the insurer is prejudiced, and prejudice is a question of fact. We relied on Oregon Auto Ins. Co. v. Salzberg, 85 Wash.2d 372, 377, 535 P.2d 816, 819 (1975):

For the foregoing reasons, we are convinced that sound public policy requires that an alleged breach of a cooperation clause may be considered substantial and material, and may effect a release of an insurer from its responsibilities only if the insurer was actually prejudiced by the insured's actions or conduct.

On the basis of Pulse, then, we reverse and remand for a hearing to determine whether this insurer has been actually prejudiced by the failure of the insured to file the appropriate statement within 30 days.

Since on remand the trial court is likely to be confronted with the question regarding the policies' exclusionary provisions as regards uninsured motorist protection, we next consider that issue.

We note that although Mr. Hill personally declined uninsured motorist coverage on his policy, he is nonetheless an insured under the Dairyland policies which provide that an insured under the uninsured motorist endorsement is

(1) The named insured as stated in the policy and any person designated as named insured in the schedule and, while residents of the same household, the spouse of any such named insured and relatives of either ; provided, if the named insured as stated in the policy is other than an individual or husband and wife who are residents of the same household, the named insured for the purposes of...