FARMERS INS. CO. OF WA. v. Frederickson

Munson, J.

Farmers Insurance Company contends the sufficiency of the corroborating evidence of an accident involving a phantom vehicle raises a question of coverage to be decided by the courts. The court determined the issue was a factual one proper for resolution by arbitration. We reverse.

Ivan Frederickson claims he was driving on a highway in northern California after dark. The road had many sharp curves. Mr. Frederickson drove around a curve and suddenly came upon logs or cut firewood on the highway. He was unable to stop before striking the logs. He lost control of his car which went off the road. He suffered personal injuries and his car was damaged as a result of the accident.

Mr. Frederickson’s vehicle was insured by Farmers. The policy underinsured motorist provision included coverage for accidents caused by a phantom vehicle:

3. Underinsured motor vehicle means:

b. A hit-and-run vehicle or phantom vehicle whose operator or owner cannot be identified and which hits or which causes an accident resulting in bodily injury or property damage without physical contact with:
*321(1) You or any family member.
(3) Your insured vehicle.
c. When there is no physical contact, . . . the accident must also be verified by someone other than you or another person having an underinsured motorist claim for the same accident.

The policy also includes an arbitration clause. Mr. Frederickson provided an affidavit from a woman who lives in the area where the accident occurred and, although she did not see the accident, states the road is used by loggers and persons cutting firewood, the road has a number of sharp curves where the accident occurred, and it would be unlikely wood in the road could have fallen from nearby trees. He also provided an affidavit from a California State Claims Officer who looked at the scene of the accident, reviewed the California Highway Patrol accident report, and concluded the sharp curves in the roadway would reduce visibility and the wood in the road would not likely have fallen from adjacent trees.

Farmers denied coverage, claiming there was insufficient evidence of negligence by an unknown vehicle and there was no evidence corroborating Mr. Frederickson’s claims. Farmers commenced this action, seeking a declaration that the accident is not covered under Mr. Frederickson’s insurance policy. Mr. Frederickson counterclaimed, contending the issue of Farmers’ liability should be submitted to arbitration. The trial court denied Farmers’ motion for summary judgment on the issue of coverage and granted Mr. Frederickson’s motion for summary judgment ordering the parties to proceed to arbitration. Farmers appealed.

The first issue is whether the existence and sufficiency of independent corroboration of the accident is an issue which must be decided by the court. Issues of liability and damages are proper matters for arbitration, *322but the issue of coverage must be decided by the court. Hartford Accident & Indem. Co. v. Novak, 83 Wn.2d 576, 586, 520 P.2d 1368 (1974); Cantwell v. Safeco Ins. Co., 37 Wn. App. 133, 136, 678 P.2d 852 (1984).

The term coverage has a narrow and precise meaning: "the assumption of risk of occurrence of the event insured against before its occurrence.” Ryan v. Cuna Mut. Ins. Soc’y, 84 Wn.2d 612, 615, 529 P.2d 7 (1974); Freimuth v. Glens Falls Ins. Co., 50 Wn.2d 621, 314 P.2d 468 (1957). Coverage issues include the "determination of who is insured, the type of risk insured against, and whether an insurance contract exists.” Kraus v. Grange Ins. Ass’n, 48 Wn. App. 883, 886, 740 P.2d 918 (1987).

The Farmers policy provides coverage for amounts a person is legally entitled to recover from an underinsured motorist. The policy defines underinsured motorist to include a phantom vehicle whose operator cannot be identified, and provides that when there is no physical contact the accident must be verified by someone, other than the insured. This part of the policy defines a type of risk insured against.

Mr. Frederickson claims the accident was caused by a vehicle whose operator cannot be identified and there was no physical contact between his vehicle and that of the underinsured motorist. The existence of sufficient verification is thus an element of the coverage under which he seeks compensation.1 The sufficiency of verification is an issue of coverage which must be decided by the court. The superior court’s order submitting the issue to arbitration was error.

Reversed and remanded for determination of coverage issue by the court. Counsel may update their affidavits if need be.

*323Thompson, J., concurs.

Farmers underinsured motorist provisions are required by RCW 48.22.030(2) which prohibits issuance of an insurance policy unless coverage is provided for damage caused by, inter alia, phantom vehicles. The statutory definition of "phantom vehicle” includes a requirement that facts of an accident be corroborated. RCW 48.22.030(8)(a). Thus, under the statute, the existence of corroboration is an element of coverage.