Roller v. Stonewall Insurance Co.

*765Worswick, J.

(concurring in part, dissenting in part) — A factual issue probably exists as to whether the first impact, occurring while Roller was inside the car, was an accident. Under Sears v. Grange Ins. Ass'n, 111 Wn.2d 636, 762 P.2d 1141 (1988), Roller is entitled to UM/UIM benefits if it was. Therefore, I concur in the majority's result as to the first impact. I part company thereafter.

The majority effectively extends liability insurance coverage to Dinell McKay for an intentional tort committed against her ex-husband while he was standing in the street. The victim of this dubious largesse is Stonewall, who presumably thought it was only insuring Flattum's car and had never heard of either Roller or McKay. Stonewall's surprise at this turn of events is probably rivaled only by McKay's and Roller's.

To accomplish this, the majority melds three disparate principles from cases with equally disparate fact patterns: "passenger use" (Sears v. Grange Ins. Ass'n, supra); "Causal connection to vehicle" (Rau v. Liberty Mut. Ins. Co., 21 Wn. App. 326, 585 P.2d 157 (1978)); and "accident" (Federated Am. Ins. Co. v. Strong, 102 Wn.2d 665, 689 P.2d 68 (1984)). Sears involved a passenger within the automobile who was injured in an ordinary collision. Rau concerned a truck driver, defined under the policy as an insured, who was injured by another vehicle after leaving his truck briefly to ask driving directions. Federated dealt with whether a husband's liability coverage continued to protect him where, without his knowledge or participation, his wife had committed an intentional tort with the otherwise covered automobile. I cannot conceive that the judges who decided those cases foresaw the majority's application of them here.

The principle that a passive guest-passenger within an automobile is "using” it for UM/UIM insurance purposes did not come without a considerable struggle. See Dobosh v. Rocky Mt. Fire & Cas. Co., 43 Wn. App. 467, 717 P.2d 793, review denied, 106 Wn.2d 1011 (1986), cited in Kowal v. Grange Ins. Ass'n, 110 Wn.2d 239, 248, 751 P.2d 306 *766(1988), overruled in Sears v. Grange Ins. Ass'n, supra. The majority now makes an easy and unjustified leap from the passenger seat to the sidewalk. Further, leaving a vehicle briefly to ask driving directions, as in Rau, has some causal relationship to the use of the vehicle; the driver intended, after all, to use the directions in driving to his destination. Standing on the street to write down a license number has no such connection. Finally, although the Federated American court employed some legerdemain in turning an intentional tort into an accident, the result can be justified because the object of its protection was not only uninvolved but unaware of the occurrence. Here, Roller stood in front of his angry ex-wife's car and provocatively wrote down her license number. That she chose to retaliate by assaulting him with her car can hardly be described as accidental from his or anyone else's point of view.

Stonewall should be held to the terms of its contract with Flattum, but nothing more. I fear that the majority has overlooked that fundamental proposition in reaching the tortured result. Therefore, I dissent.

Review granted at 113 Wn.2d 1035 (1990).