Mid-Century Insurance v. Henault

Talmadge, J.

(dissenting) — I dissent. The purpose of Washington’s uninsured/underinsured motorist (UIM) statute is to provide insurance coverage to responsible *219drivers against uninsured and underinsured drivers, but it does not require insurers to provide coverage for free. The majority opinion obliges Mid-Century to provide UIM coverage for Henault’s operation of a motorcycle for which she failed to purchase UIM coverage, or any liability insurance at all. The injuries Henault sustained when struck by an uninsured motorist are not covered under the UIM provisions of Henault’s Mid-Century automobile liability insurance policy because the policy’s "owned-vehicle” exclusion precludes coverage.

Facts

Henault failed to purchase insurance for her motorcycle. Henault was riding her uninsured motorcycle when the accident occurred. She was first struck by a vehicle driven by Curry. Henault was thrown from her motorcycle. While lying in the road she was struck by Benton, the uninsured. Henault then brought suit under the Mid-Century policy which she had purchased to cover her pickup truck.3

Mid-Century’s UIM coverage stated it would "pay all sums which an uninsured person is legally entitled to recover as damages from the owner or operator of an under-insured motor vehicle because of bodily injury sustained by the insured person.” The policy also excluded UIM coverage for bodily injury sustained "[w]hile occupying a motor vehicle owned or available for regular use by you or a family member for which insurance is not afforded under the liability coverage of this policy.”

Discussion

The Mid-Century owned-vehicle exclusion is expressly sanctioned by the Legislature. RCW 48.22.030(2) states that insurers are not required to provide coverage for motorcycles, or for any owned, but uninsured, vehicles of the insured. Such statutorily authorized policy exclusions *220allow the insurer to prevent "an increase in the quantum of risk without a corresponding increase in the premium.” Grange Ins. Ass’n v. MacKenzie, 103 Wn.2d 708, 712, 694 P.2d 1087, 1089 (1985). The purpose behind the owned-vehicle exclusion is to prevent an insured from receiving free UIM coverage on an uninsured vehicle by virtue of having purchased a policy for another vehicle. Majority at 213. While the UIM statute is to provide protection against financially irresponsible motorists, the Legislature did not intend the statute to protect one uninsured motorist from another uninsured motorist, or to reward the vehicle owner who irresponsibly fails to insure a vehicle.4

The majority determines that under the definition of "occupying” in the Mid-Century policy,5 the average insurance purchaser would not conclude Henault was occupying her uninsured motorcycle under the facts of the case. Recognizing that Farmers Ins. Co. v. Clure, 41 Wn. App. 212, 702 P.2d 1247 (1985) and Eurick v. Pemco Ins. Co., 108 Wn.2d 338, 738 P.2d 251 (1987) suggest otherwise, the majority attempts to distinguish those cases. The majority ignores the common sense meaning of the owned-vehicle exclusion and concludes Henault was not occupying her uninsured motorcycle at the time of the second impact and is therefore covered under the policy’s UIM provision. Any insurance purchaser would concede on the language of the exclusion that the accident happened precisely because Henault rode her uninsured motorcycle and her injuries arose from that use of the motorcycle. Moreover, the average insurance purchaser would not believe the UIM provision in a policy for a pickup truck covers *221injuries from an accident while riding an uninsured motorcycle.

The majority reaches its conclusion with a strained interpretation of the word "occupying” in the owned-vehicle exclusion. Under its interpretation, the exclusion is limited to injuries that derive from some unspecified physical proximity between the driver and the owned vehicle, in this case, a motorcycle. The majority’s analysis was rejected in Clure and Eurick.

The court of appeals decision in Clure involves facts nearly identical to those in this case. The insured’s son sought UIM coverage for injuries to the left side of his body which were sustained when he hit the ground after being thrown from his motorcycle. The motorcycle was not an insured vehicle under the applicable Farmers automobile liability policy. Farmers denied coverage based on the owned-vehicle and motorcycle exclusions contained in the policy. The court held "the exclusions for 'occupying’ a noninsured vehicle or motorcycle are intended to relate to injuries sustained in an accident which directly result from being 'in, on, getting into or out of a noninsured vehicle or motorcycle.” Clure, 41 Wn. App. at 215-16. The court refused to narrowly construe "occupy” and render the exclusionary clauses meaningless. The court also stated a narrow construction would "alter the nature of the insurer’s risk by factors not contemplated in the computation of premiums.” Id. at 217. This reasoning, which employs a causal test to isolate risks resulting from use of motorcycles, is persuasive here.

The majority attempts to distinguish Clure by noting Henault does not seek coverage for injuries sustained when she was thrown to the pavement in the first collision, but rather she seeks coverage for the injuries sustained in the second impact. The majority concludes that at the time of the second impact, Henault was no longer occupying her motorcycle. This analysis defies common sense. The Clure court determined that a practical interpretation of the exclusionary clauses was necessary, *222reasoning that the average insurance purchaser "would not reasonably conclude that the exclusion from coverage was merely dependent upon the fortuitous circumstance that a portion of his or her body remained in physical contact with the motorcycle at the precise moment of injury.” Clure, 41 Wn. App. at 217. The Clure court was correct. The majority’s literal approach to the construction of "occupying” and its definition "in, on, getting into or out of’ circumvents the purpose of the owned-vehicle exclusion. Henault’s injuries directly resulted from her use of her uninsured motorcycle.

In Eurick, the parents purchased an automobile insurance policy for themselves and their children. A child was killed while riding as a motorcycle passenger. The Perneo policy contained a motorcycle exclusion: "[t]his policy does not apply ... to bodily injury to an insured while operating, occupying or using a motorcycle.” Eurick, 108 Wn.2d at 340. The parents sought coverage under their policy’s UIM provision for their medical expenses, loss of services and support, and loss of love and companionship. RCW 4.24.010.

We held that the UIM statute permitted insurers to exclude losses by persons "operating or occupying a motorcycle” from their mandatory UIM coverage. Id. at 342; RCW 48.22.030(2). We concluded that recognizing the parents’ claim would "render the exclusion virtually meaningless”:

We believe that the clear intent of the contract was to exclude from the set of risks that Perneo would insure against, and that respondents would pay premiums for, all claims arising from injuries sustained by a motorcycle driver or rider. Recognition of the parents’ claims would render the exclusion virtually meaningless. The only damages a parent cannot recover under RCW 4.24.010 appear to be the child’s personal pain and suffering. If the parents’ claims were allowed, the insurer would pay the bulk of the damages it would have paid had the child brought its own action. To allow the exclusion to be circumvented merely by the substitution of one insured for another on the claim form would be to sue*223cumb to a "forced” or "strained” interpretation totally at odds with the interpretation the average person would give the policy. The average policyholder would read the exclusion as a real — not an illusory — limitation on coverage.

Id. at 342. In effect, this court held that exclusionary language similar to that present in the Mid-Century policy must be interpreted to exclude all claims arising out of the excluded event, i.e., the operation of the uninsured motorcycle.6

Conclusion

Mid-Century’s owned-vehicle exclusion should be interpreted to achieve the purpose of RCW 48.22.030(2). Henault was not covered by Mid-Century’s UIM coverage in her pickup truck’s policy for the loss arising out of her use of the uninsured motorcycle. To hold otherwise means Henault gets UIM coverage for which she did not pay a premium. I doubt the average insurance purchaser would conclude that coverage was proper for injuries sustained by a person as a direct result of riding on a motorcycle that person failed to insure. Though I sympathize with Henault’s injuries, she may not hold Mid-Century responsible for her loss when she failed to insure her motorcycle and to procure UIM coverage.

*224Guy, J., concurs with Talmadge, J.

It is noteworthy that Henault originally claimed coverage under the Personal Injury Protection (PIP) portion of the Mid-Century policy. She has abandoned that claim on appeal.

See Herrick v. Liberty Mut. Fire Ins. Co., 202 Neb. 116, 118, 274 N.W.2d 147 (1979) ("[a]n overriding public policy of protecting an owner-operator who inexcusably has no applicable bodily injury liability coverage is not presently discernible”). See also Fleming v. Grange Ins. Ass’n, 73 Wn. App. 570, 576, 870 P.2d 323 ("while the public policy underlying Washington’s UIM statute is to maximize the protection afforded by insurance coverage, it does not require insurance companies to provide the coverage for free”), review denied, 125 Wn.2d 1002 (1994); Blackburn v. Safeco Ins. Co., 115 Wn.2d 82, 88, 794 P.2d 1259 (1990).

The policy defines "occupying” as "in, on, getting into or out of’ a motor vehicle.

The reasoning in Eurick is consistent with the general principle in many insurance cases that where an unbroken causal chain of events produces the loss, a court must look to the preponderant or efficient cause of the loss, i.e., the one that set the others in motion, to determine if there is coverage or if an exclusion applies. Hocking v. British Am. Assurance Co., 62 Wash. 73, 75, 113 P. 259 (1911); Graham v. Public Employees Mut. Ins. Co., 98 Wn.2d 533, 537-38, 656 P.2d 1077 (1983) (the "immediate physical cause analysis . . . should be discarded”; jury could find Mt. St. Helens eruption was the efficient proximate cause of the mudflows causing the loss); Villella v. Public Employees Mut. Ins. Co., 106 Wn.2d 806, 815, 725 P.2d 957 (1986); Safeco Ins. Co. of Am. v. Hirschmann, 112 Wn.2d 621, 773 P.2d 413 (1989); McDonald v. State Farm Fire & Casualty Co., 119 Wn.2d 724, 731, 837 P.2d 1000 (1992) (when a peril insured against sets an unbroken sequence of causes into motion, the resulting injury or loss is covered even though other events in the causal chain may have been excluded); Krempl v. Unigard Sec. Ins. Co., 69 Wn. App. 703, 705, 850 P.2d 533 (1993) (when an excluded peril sets in motion an unbroken chain of events resulting in a loss, the loss arises out of the excluded peril and therefore was not covered even though the last link in the causal chain was a covered peril).