Court: Court of Appeals of Washington; June 21, 1990; Washington; State Appellate Court
Thompson and Kathy McVey, alongside their minor daughter Kristy, appeal the summary dismissal of their declaratory relief action against Nationwide Mutual Insurance Company and Farmers Insurance Company of Washington. The incident in question involves 14-year-old Kristy, who was injured in a car accident while a passenger in a vehicle owned by Betty Rowe, whose permission for use was not granted. The McVeys argue that the vehicle was uninsured because Farmers denied liability coverage to the driver, Sitka Morelli, based on policy exclusions that state no coverage applies if a person uses a vehicle without sufficient reason to believe they have the owner's permission.
Both Farmers and Nationwide denied UIM coverage for Kristy based on similar exclusions in their policies. The court granted summary judgment in favor of both insurers, concluding that the UIM exclusions precluded coverage. The McVeys contend that the term "use" within these exclusions is ambiguous, suggesting it may include passengers. They reference the case Sears v. Grange Ins. Ass'n, which outlined criteria for determining if a person is "using" a vehicle, ultimately ruling that the passenger met these criteria. However, the McVeys differentiate their case from Sears, arguing it dealt with a coverage clause rather than an exclusionary clause, relying instead on principles of construction to support their position.
Exclusion clauses in insurance policies are interpreted strictly against the insurer, particularly when ambiguous. Clear language can limit liability, but ambiguity cannot. The McVeys argue that the term 'using' in their policies is ambiguous when compared to 'occupying.' However, the court finds no ambiguity, stating that an average person would understand 'using' to include 'occupying.' The court notes past cases, such as Dobosh v. Rocky Mt. Fire, where conflicting interpretations raised ambiguity, but asserts that a ruling from the State Supreme Court takes precedence over Court of Appeals decisions. The McVeys reference cases supporting the entitlement to Underinsured Motorist (UIM) protection under certain conditions, but the court distinguishes between primary liability and UIM coverage, asserting that Personal Injury Protection (PIP) coverage does not need consistency with UIM coverage. The court affirms the summary dismissal of the McVeys' claims, rejecting the request for attorney fees, as the appeal raised a debatable issue regarding the ambiguity of 'using.' The court concludes its decision without addressing the cross-appeal from Nationwide, as it is rendered unnecessary by the ruling.
