Truck Insurance Exchange v. Rohde

Rosellini, J.

(dissenting) — I disagree with the conclu*474sion of the majority that the provision of the contract limiting the liability of the insurer is not ambiguous.

This litigation arises out of a dispute as to the meaning of the terms “each accident” and “each occurrence.” These terms are nowhere defined in the contract or the endorsement attached thereto.

A basic rule in the interpretation of an insurance contract is that the words, phrases, and terms used shall be given their plain, popular, and ordinary meaning unless it is apparent from a reading of the whole instrument that a different or special meaning was intended, or is necessary in order to avoid an absurd or unreasonable result. Christensen v. Sterling Ins. Co., 46 Wn. (2d) 713, 284 P. (2d). 287; Kane v. Order of United Commercial Travelers of America, 3 Wn. (2d) 355, 100 P. (2d) 1036.

In the case at bar, was there an accident or an occurrence when the automobile collided with the first motorcycle, and were there two other accidents or occurrences when it thereafter immediately collided with the second and then with the third motorcycle? Or, was it all one accident or one occurrence because of the close proximity of time and space, and because, as contended by the appellant, the respondent’s original negligent act of getting on the wrong side of the highway was the proximate cause of.all three collisions or impacts?

From the viewpoint of the people injured, there was an “accident” or “occurrence” each time the automobile struck one of the motorcycles.

From the viewpoint of the insured, who desired coverage for each event or incident in which he was involved, the first accident commenced with the first impact and terminated when the damage or injury resulting from the impact had been effected. The second and third accidents commenced and ended in the same manner.

From the viewpoint of the insurer, the accident started when the insured commenced his negligent conduct and terminated when his automobile came to rest, thus ceasing to cause damage or injury.

*475What would be the plain, usual, and ordinary meaning of the words “accident” and “occurrence,” as used in this contract, under the above circumstances? Who can say what interpretation a person would adopt?

The term “accident,” as it is used in insurance policies, has been the subject of interpretation in the courts of England and in this country. There have been different conclusions as to its meaning. South Staffordshire Tramways Co. v. Sickness & Accident Assurance Ass’n, 1 Q. B. 402 (1891); 63 L. T. 807; 60 L. J., Q. B. 260. Allen v. London Guarantee & Accident Co. Ltd., 28 T. L. R. 254; Anchor Cas. v. McCaleb, 178 F. (2d) 322; Chapin v. Ocean Accident & Guarantee Corp., 96 Neb. 213, 147 N. W. 465; Messersmith v. American Fidelity Co., 232 N. Y. 161, 133 N. E. 432, 19 A. L. R. 876. These cases lend emphasis to the conclusion that the term “accident,” if not defined in the insurance policy, is reasonably susceptible of two or more interpretations. Where the language is susceptible of more than one meaning, it is ambiguous. Boeing Airplane Co. v. Firemen’s Fund Indemnity Co., 44 Wn. (2d) 488, 268 P. (2d) 654. Contracts of insurance are to be liberally construed, and an ambiguous provision construed most favorably to the insured. Guaranty Trust Co. v. Continental Life Ins. Co., 159 Wash. 683, 294 Pac. 585. See, also, Davis v. North American Accident Ins. Co., 42 Wn. (2d) 291, 254 P. (2d) 722. This court in Selective Logging Co. v. General Cas. Co. of America, ante p. 347, 301 P. (2d) 535, Sills v. Sorenson, 192 Wash. 318, 73 P. (2d) 798, held that, where a policy is susceptible of two interpretations, the meaning and construction most favorable to the insured must be applied even though the insurer may have intended another meaning.

Construing the instrument before us most favorably to the insured, the term “each accident” means each collision, rather than the results flowing from each act of negligence on the part of the insured; and consequently, three accidents occurred.

The majority chooses to follow the decision in the case of Hyer v. Inter-Insurance Exchange of the Automobile Club *476of Southern California, 77 Cal. App. 343, 246 Pac. 1055, even though this court in Bruener v. Twin City Fire Ins. Co., 37 Wn, (2d) 181, 222 P. (2d) 833, 23 A. L. R. (2d) 385 (overruling Ploe v. International Indemnity Co., 128 Wash. 480, 223 Pac. 327, 35 A. L. R. 999), rejected the type of reasoning employed by the majority in the Hyer case, and applied instead the principle that a policy should be construed according to the plain meaning of its terms. We held the insurer not liable under a policy that did not cover “collision,” Which was the immediate physical cause of the damage, although the collision resulted from a skidding — one of the hazards insured against.

This court has thus taken the position that in determining the existence or nonexistence of coverage under an insurance policy in a particular situation, the event itself, rather than the proximate cause of such event, should be considered.

In Jeffries v. General Cas. Co. of America, 46 Wn. (2d) 543, 283 P. (2d) 128, the policy of insurance covered liability for injuries and damages arising out of the insured garage operation, but excluded automobile trailers rented to others while away from the premises of the insured. The insured rented a trailer to the plaintiff, who hauled it away attached to his automobile. While away from the premises, the trailer became unhitched and fell on the plaintiff’s foot, injuring him. He recovered judgment against, the insured for negligently hitching the trailer. This court found that the insurer was not liable, because, although the negligence occurred on the premises, the injury occurred elsewhere. The court said: “We are not concerned with the cause of the accident, but with where it took place.”

It is thus seen that this court has rejected the contention that a policy of liability insurance should be construed in relation to proximate cause or that the term “accident” refers to the cause rather than to the result; and this is the same thinking expressed by the dissenting judge in the Hyer case, supra, who stated in part as follows:

“I dissent, because to my mind the word ‘accident’ in the indemnity policy in suit was intended by the parties to be *477given its ordinary meaning, and this the opinion of my associates holds it should not receive.

“. . . But my associates hold that an unusual meaning was intended by the parties, and that the word ‘accident’ had reference to the cause of the évents rather than to the events themselves. Of course, if this indemnity policy contemplated that an ‘accident’ referred to a cause, and not to an ‘event,’ but one accident occurred, for which there was but one cause.
“There is a clear distinction between an insurance against accidents which may happen to the insured and one indemnifying him against loss for injuries which he may wrongfully cause to others. The former, in so far as fixing liability is concerned, clearly involves an inquiry into the intention, and care exercised by the insured, and his part in producing the event from which the loss occurs. The insurer would not agree to pay the insured for a loss which was intentionally caused by the insured himself. It is understood that the insured in such cases must be free from blame and wrongdoing; but in an indemnity contract the opposite is true. There, the contract contemplates reimbursement of the assured by the insurer of loss sustained as a consequence of the latter being required to pay a third party for injuries inflicted upon said third party or his property. Of course, this necessarily involves a recognition of the fact that the assured was guilty of an act violative of the rights of another, so as to create a liability for damages to that other. In such a contract the insurer is not concerned with the cause, except as above indicated; and so, when a limit is placed upon his liability for any one accident, the cause is not taken into consideration, but only the event and the loss resulting therefrom to the assured.”

The judgment of the lower court should be affirmed.

Finley, J., concurs with Rosellini, J.,

March 8, 1957. Petitions for rehearing denied.