(concurring in the result) — I agree with the result which the majority reaches. The language in the insurance policy is ambiguous, and should be construed in favor of the insured. I cannot join the opinion, however, since I believe the majority makes an unjustified departure from the case law surrounding the proper method of interpreting an insurance policy.
Interpretation of Insurance Policies
The majority states that in the event that an insurance policy is ambiguous, the court should view any extrinsic evidence to determine the meaning of the policy. Majority, at 201. This has not and should not be the law in this state. In Vadheim v. Continental Ins. Co., 107 Wn.2d 836, 734 P.2d 17 (1987), a case cited by the majority, this court held
if any clause is ambiguous the court must apply a construction that is most favorable to the insured, even though the insurer may have intended another meaning.
Vadheim, at 841. The rule stated in Vadheim has long been the rule in this state, and I see no reason, nor has the majority offered any, to abandon this time-honored rule. See, e.g., Morgan v. Prudential Ins. Co. of Am., 86 Wn.2d 432, 435, 545 P.2d 1193 (1976); Glen Falls Ins. Co. v. Vietzke, 82 Wn.2d 122, 126, 508 P.2d 608 (1973); Thompson v. Ezzell, 61 Wn.2d 685, 688, 379 P.2d 983 (1963); Selective Logging Co. v. General Cas. Co. of Am., 49 Wn.2d *206347, 351, 301 P.2d 535 (1956); Guaranty Trust Co. v. Continental Life Ins. Co., 159 Wash. 683, 688, 294 P. 585 (1930); Algoe v. Pacific Mut. Life Ins. Co., 91 Wash. 324, 330, 157 P. 993 (1916). If an insurance policy is ambiguous, the construction favoring the insured prevails, notwithstanding the existence of any extrinsic evidence.
Moreover, the majority's application of its new rule is flawed. In the typical contract interpretation case, a court looks to extrinsic evidence to determine the intent of the parties at the time they entered into the agreement. Jacoby v. Grays Harbor Chair & Mfg. Co., 77 Wn.2d 911, 918, 468 P.2d 666 (1970). In this case, there is no doubt that when the insurance company's agent explained to the insured that there was no coverage for passengers' injuries and the insured subsequently purchased the policy, the parties had actually intended that the policy would not cover his passengers' injuries. That the insurance company later wrote to the insurance commissioner stating that this policy did provide coverage for passengers may estop the insurance company from denying coverage; it is not, however, relevant in ascertaining the intent of the parties as shown by the extrinsic evidence.
Conclusion
I am deeply dismayed by the majority's attempt to rewrite time-honored principles regarding the proper construction of insurance policies. Ambiguities in these policies must be construed in favor of the insured, as the insurance company is responsible for drafting the policy, and the insured has little choice but to accept the policy language the insurance company used. I agree with the result the majority reaches, but I cannot agree with its logic or rationale.
Utter and Goodloe, JJ., concur with Dore, J.
Reconsideration denied November 30, 1987.