(dissenting)—The majority engages in a learned dissertation of whether "a comprehensive automobile liability insurance policy contained in special multiperil policy [is] exempt from the provisions of Washington's underinsured motorist statute (RCW 48.22.030)?" Majority, at 756. The majority concludes that the policy in question is asserted to provide only excess coverage and the statute does not apply. Majority, at 756-57.
The majority in its last paragraph mentions that it has not yet been determined whether the policy in question provides primary or excess coverage.
*761I dissent on the basis that this court should not answer questions which may or may not exist. This record prevents an intelligent answer to the certified question. On this record the question is really "what if"?
The majority premises its entire discussion upon the existence of a policy known as an excess, umbrella or catastrophe-type policy.
Yet the defendant insurance company certified in a stipulation in the record that the attached policy was a true and exact copy of the original issued to the insureds, MacKenzies. In paragraph 7 of the conditions applicable to section II (the liability section) the certified "true and exact copy" of defendant's insurance policy, it states: "The insurance afforded by this policy is primary insurance, except when stated to apply in excess of or contingent upon the absence of other insurance." Stipulated Supplemental Record on Certification, Special Multi-Peril Policy, at 4.
The "true and exact copy" furnished by defendants contains a multitude of attachments, many undated and not designated as applying to a particular policy. Throughout defendants' brief there is reference to what the insureds never intended to protect by this policy and what they did intend to cover, what was the purpose of the policy, what the policy did not intend to cover, the premise on which Empire Fire & Marine Insurance Company issued the policy and risks for which no premiums have been charged.
A review of the 57 pages making up the "true and exact copy" leaves one perplexed at best. Those pages contain the quoted-above declaration that it is primary coverage, Form A-26 is entitled in caps "Comprehensive Automobile Liability Insurance with limits of $500,000 for bodily injury liability".
If in fact, this policy only provides "excess" coverage, there is a substantial question as to the effect of the 1985 amendment to the underinsured motorist statute which specifically excluded underinsured motorist coverage from *762umbrella or excess policies. RCW 48.22.030(2). Usually such material change would lead to a presumption of a change in existing legislative intent. Strunk v. State Farm Mut. Auto. Ins. Co., 90 Wn.2d 210, 213, 580 P.2d 622 (1978). The logical application here of that rule would lead to a conclusion contrary to the majority.
Defendants acknowledge that there is a factual dispute as to the contents of the policy in issue. They refer to the "correct" endorsement, but defendants state that for purposes of certification only the "incorrect" endorsement has been submitted to this court. Brief of Respondent, at 4.
In short, this is a sorry record on which to issue an opinion. The court does not even know the contents of the insurance policy which governs the rights of the parties. The majority renders an opinion about what might be the law if the policy as finally established factually happens to fall within a policy version urged by defendants as what they intended it to be.
I would return this case to the federal district court so that the parties and the court can determine what insurance policy they are arguing about. This case has not reached any defined issue yet. Until then I would forgo writing an opinion about a policy, the contents of which are unknown to this court, and which might or might not exist in fact.
Utter and Dore, JJ., concur with Brachtenbach, J.