112 Wash. App. 81 | Wash. Ct. App. | 2002
T.H.E. Insurance Company appeals a summary judgment ruling that Jeffrey Butzberger, the deceased, was “using” an automobile that T.H.E. insured. He had left the automobile by the side of the roadway, and was attempting to rescue the driver of an overturned pickup truck when he was struck and killed by an underinsured motorist. The personal representative of the estate of Butzberger cross-appeals another summary judgment ruling that the deceased was not “using” the overturned truck, which Allstate Insurance Company insured, at the time of the accident.
We hold that Butzberger was “using” the overturned pickup truck, which Allstate insured, and was entitled to uninsured motorist (UIM) coverage under the Allstate policy. Butzberger was not “using” the automobile that T.H.E. insured because he was neither engaged in a transaction essential to the use of that automobile nor was there a causal connection between his injury and the use of that automobile when he was struck. We further hold that Butzberger is entitled to attorney fees against Allstate. We reverse both judgments, and remand for entry of judgment consistent with this opinion.
Early on a dark and rainy morning in November 1995, Frank Foster was driving his pickup truck north on Interstate 5 when he lost control of the vehicle. He hit an obstruction and the truck overturned, remaining on its side within the lanes of oncoming traffic. When the truck came to rest, Foster was still in his seat belt, hanging upside down.
Shortly thereafter, Jeffrey Butzberger arrived at the scene. He was driving to work in an automobile owned by Cascade Distributing that T.H.E. insured. He pulled to the side of the highway and parked the car about 75 feet from the overturned truck. Butzberger ran to the overturned
Butzberger’s estate sued Foster, the two insurance companies, and others not pertinent to this appeal. The trial court granted summary judgment on several claims. The court ruled that the T.H.E. policy for the Cascade automobile provided UIM coverage for Butzberger. Accordingly, the court awarded attorney fees against T.H.E. in favor of Butzberger. The court also ruled that the Allstate policy for the overturned truck did not provide UIM coverage for Butzberger.
T.H.E. appeals, and Butzberger cross appeals.
“USE” UNDER ALLSTATE’S POLICY
Butzberger argues that the court erred in granting summary judgment in favor of Allstate. Specifically, he argues that he was “using” Foster’s pickup truck and is entitled to UIM coverage. We agree.
We may affirm an order granting summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.
The material facts are undisputed. Thus, we focus on whether Allstate was entitled to judgment as a matter of law.
Under the liability provisions of the Allstate policy, any person “using” the vehicle with the named insured’s permission is covered. The statutory policy of RCW 48.22.030 “ ‘vitiates any attempt to make the meaning of insured for purposes of uninsured motorist coverage narrower than the meaning of that term under the primary liability section of the policy.’ ”
The policy does not define the term “using.” But Transamerica Insurance Group v. United Pacific Insurance Co. establishes that the term is broad and includes all proper uses of a vehicle.
“(1) [T]here must be a causal relation or connection between the injury and the use of the insured vehicle; (2) the person asserting coverage must be in a reasonably close geographic proximity to the insured vehicle, although the person need not be actually touching it; (3) the person must be vehicle oriented rather than highway or sidewalk oriented at the time; and (4) the person must also be engaged in a transaction essential to the use of the vehicle at the time.”* [11 ]
In Rau, a truck driver parked his employer’s truck and crossed four lanes of traffic on foot to ask directions. As he returned to his truck, he was struck by an uninsured motorist while he was in one of the lanes of traffic. The impact occurred about 20 feet from where he parked the truck he had been driving.
The court noted that “whether a person can be considered as ‘using’ a motor vehicle and thus an insured under an uninsured motorist endorsement depends on the factual context of each case.”
Citing Hartford, Accident & Indemnity Co. v. Booker,
*88 In defining the word “use” of the garbage truck, we must look to the contemplation of the parties in entering into the insurance contract. . . . Common sense tells us that the parties certainly contemplated that the garbage truck would be loaded and unloaded and that the garbage to be loaded on said truck would be hauled to the truck by a garbage collection container and that, in many instances, it would be necessary for the driver to walk down the side of the road near his truck in order to collect the garbage.[15 ]
Likewise, the Rau court also cited Federated Mutual Implement & Hardware Insurance Co. v. Gupton,
The Rau court cited other cases to establish two of the parts of its test.
Synthesizing the principles of these cases, this court applied the four factors to conclude that Rau was using the delivery truck at the time he was struck. We stated that:
*89 Common sense tells us, as it did the court which considered a similar event in Booker, that the parties contemplated the driver of a delivery truck on his route might well be expected to have to occasionally leave the truck briefly to ask directions. The driver had left the truck to seek directions as to where to make a delivery, and was returning to his truck and was 20 feet from it at the time he was struck by the uninsured motorist;[20 ]
In Cherry v. Truck Insurance Exchange, Division Two of this court extensively discussed and applied the Rau factors. There, the court considered whether a tow truck operator, Cherry, was “using” his truck for purposes of insurance coverage under the tow truck’s policy. Cherry was injured while examining an uninsured motorist’s vehicle. He parked the tow truck in front of the disabled car so that its headlights and overhead lights illuminated the car. The uninsured motorist started the engine, accidentally injuring Cherry while his arm was in the engine compartment.
The court applied the Rau factors, and determined that the test was met. The court concluded that a reasonable person purchasing insurance would expect an injury sustained while helping a stranded motorist to be covered by a UIM policy covering employees using the emergency service tow truck.
Here, the primary question is whether one who comes to the aid of a motorist trapped inside an overturned insured vehicle on a highway is “using” that vehicle within the reasonable expectations of persons buying insurance. Those expectations relate, in part, to the policies underlying UIM coverage that our statutes express. We conclude that the facts of this case require that we answer this question affirmatively.
In addressing the first element of the Rau test, the court focused on whether Roller was “using” the insured car after he exited it and when the uninsured motorist ran him down in the street.
Having established that Butzberger was using the vehicle that Allstate insured, we consider the other factors of the test. There is a causal connection between the use and the death in this case. While engaged in the rescue effort,
The final question is whether Butzberger was engaged in a transaction essential to the use of Foster’s pickup, which Allstate insured. Unquestionably he was. We can think of nothing more “essential” than a rescue mission by one speaking with the occupant of an overturned vehicle while trying to render assistance at the time of the injury. Any other conclusion is without support either in the relevant case authority or this record.
Allstate attempts to distinguish Rau, arguing a novel and unconvincing “stranger” theory. Under this theory, Allstate argues that the Rau case is not applicable to a person who has never been either a passenger or driver of the insured vehicle.
While it is true that most cases deal with situations in which the person seeking UIM coverage had once been within the insured vehicle, that is not a prerequisite. The Rau test, adopted by our Supreme Court in Sears, does not contain such a requirement. Rather, only some connection with the use of the insured vehicle is required within the broad confines stated in Transamerica.
There, Division Two of this court applied the Rau test piecemeal to determine if the victim was covered by a homeowner’s policy that excluded coverage for injuries arising out of use of a vehicle.
T.H.E. argues that the court in Cherry abandoned the Rau test. That argument is contrary to the explicit language of Cherry
In sum, all four factors of the Rau test were met here. Summary judgment in favor of Allstate was not correct. Rather, we hold, as a matter of law, that summary judgment in favor of Butzberger is appropriate.
Butzberger also argues that the court erred by ruling that he was not “occupying” the vehicle at the time of the accident. We will not decide this question because we hold that he was “using” the vehicle, thus qualifying for coverage under the policy.
T.H.E. argues that Butzberger was not “using” Cascade’s automobile, which T.H.E. insured. We agree.
The Rau factors are conjunctive. Thus, if one factor is not satisfied we need not address the others.
The estate has failed to demonstrate the fourth factor, the requirement that the injured person be engaged in a transaction essential to the use of the insured vehicle. Allstate and the estate argue that it is essential to stop a vehicle and offer assistance when an accident occurs in the road ahead of one’s vehicle. The estate urges this court to adopt a public policy stance on the issue favoring rescuers. The essence of this view is that there is a common understanding and expectation that one should assist when an accident occurs.
While we have no problem with a public policy that encourages rescuers, nothing shows that Butzberger’s actions in leaving the Cascade automobile, which T.H.E. insured, to help Foster in his overturned pickup was a transaction essential to the use of the automobile. Rescuing Foster was not essential to some specialized use of the automobile, as conveyance of a patient on a stretcher to the ambulance was essential to the use of the ambulance as such in Owens. The Cascade vehicle was not an aid vehicle or ambulance.
Moreover, there is nothing in the record to show that Cascade is in the business of providing aid cars. Likewise, Butzberger’s professional status as a nurse did not transform the vehicle into an ambulance. It is the use of the insured vehicle, not the professional skills of its driver, that is relevant. In short, there is no showing here of the fourth element required under the Rau test.
We also note that the estate has not established a causal connection between the insured automobile and the injury. Merely having arrived at the site of the accident in a vehicle does not create a causal connection between the vehicle and the injury in this case.
The estate also argues that the trial court erred by granting summary judgment on the issue of whether there was a valid UIM waiver. We need not decide this issue in light of our holding that Butzberger was not using the vehicle and was therefore not covered under the policy.
ATTORNEY FEES
T.H.E. argues that the trial court abused its discretion in awarding the estate $8,500 in attorney fees because it provided only a very cursory breakdown of the hours spent on each activity. We reverse that award, but for different reasons.
In Mahler v. Szucs
In any event, an award of fees against T.H.E., given our holding in this case, is not warranted. Accordingly, we reverse that award.
We reverse both judgments and remand to the trial court for further proceedings consistent with this opinion.
Agid and Appelwick, JJ., concur.
Review granted at 148 Wn.2d 1008 (2003).
CR 56(c).
Mountain Park Homeowners Ass’n v. Tydings, 125 Wn.2d 337, 341, 883 P.2d 1383 (1994).
Mains Farm Homeowners Ass’n v. Worthington, 121 Wn.2d 810, 813, 854 P.2d 1072 (1993).
State Farm Gen. Ins. Co. u. Emerson, 102 Wn.2d 477, 480, 687 P.2d 1139 (1984).
E-Z Loader Boat Trailers, Inc. v. Travelers Indem. Co., 106 Wn.2d 901, 907, 726 P.2d 439 (1986).
Cherry v. Truck Ins. Exch., 77 Wn. App. 557, 561, 892 P.2d 768, review denied, 127 Wn.2d 1012 (1995) (citing Mut. of Enumclaw Ins. Co. v. Wiscomb, 97 Wn.2d 203, 207-08, 643 P.2d 441 (1982)).
Roller v. Stonewall Ins. Co., 115 Wn.2d 679, 685, 801 P.2d 207 (1990).
Rau v. Liberty Mut. Ins. Co., 21 Wn. App. 326, 328-29, 585 P.2d 157 (1978) (quoting Federated Am. Ins. Co. v. Raynes, 88 Wn.2d 439, 443, 563 P.2d 815 (1977)).
Transamerica Ins. Group v. United Pac. Ins. Co., 92 Wn.2d 21, 26, 593 P.2d 156 (1979), overruled on other grounds by State v. Olson, 126 Wn.2d 315, 893 P.2d 629 (1995).
Sears v. Grange Ins. Ass’n, 111 Wn.2d 636, 638, 762 P.2d 1141 (1988).
Sears v. Grange Ins. Ass’n, 111 Wn.2d 636, 639, 762 P.2d 1141 (1988) (quoting Rau, 21 Wn. App. at 334).
Rau v. Liberty Mut. Ins. Co., 21 Wn. App. 326, 327, 585 P.2d 157 (1978).
Rau, 21 Wn. App. at 334.
140 Ga. App. 3, 230 S.E.2d 70 (1976).
Booker, 140 Ga. App. at 7, 230 S.E.2d at 73, quoted in Rau, 21 Wn. App. at 332-33 (emphasis added).
357 F.2d 155 (4th Cir. 1966).
E.g., Ins. Co. of N. Am. v. Perry, 204 Va. 833, 134 S.E.2d 418, 421 (1964) (illustrates geographical proximity and vehicle orientation prongs: police officer 164 feet away from his parked car and “engaged in the act of serving a warrant” when he was struck by an uninsured motorist was not covered).
194 Ark. 817, 109 S.W.2d 928 (1937).
Owens, 109 S.W.2d at 930.
Rau, 21 Wn. App. at 334-35 (emphasis added).
Cherry v. Truck Ins. Exch., 77 Wn. App. 557, 559, 892 P.2d 768, review denied, 127 Wn.2d 1012 (1995).
Cherry, 77 Wn. App. at 566.
115 Wn.2d 679, 801 P.2d 207 (1990).
Roller, 115 Wn.2d at 681.
Roller, 115 Wn.2d at 681.
Roller, 115 Wn.2d at 687-88.
Roller, 115 Wn.2d at 687.
Cherry, 77 Wn. App. at 566.
Allstate suggests that rejecting its stranger argument would open up coverage to “(1) someone standing next to the insured vehicle talking to an occupant, (2) someone taking a photograph of the insured vehicle, (3) someone walking toward the insured vehicle, (4) someone chasing after the insured vehicle, (5) a homeless person soliciting money from the driver of the insured vehicle, (6) a burglar attempting to break into the insured vehicle, (7) a vandal spraying paint on the insured vehicle, (8) someone collecting money at a toll booth or parking lot, and (9) someone directing the insured vehicle through a construction zone or accident scene.” Br. of Resp’t/Cross-Appellant at 16.
79 Wn. App. 265, 898 P.2d 357 (1995).
Beckman, 79 Wn. App. at 270.
Beckman, 79 Wn. App. at 272-73.
In a footnote discussing criticism of the Rau test, the court stated that “[t]he Rau analysis need not be a conelusory and self-serving semantic game, however, nor can we abandon the test in light of our Supreme Court’s adoption of it.” Cherry, 77 Wn. App. at 561 h.2.
135 Wn.2d 398, 957 P.2d 632 (1998).
Mahler, 135 Wn.2d at 435 (citing Smith v. Dalton, 58 Wn. App. 876, 795 P.2d 706 (1990); Rhinehart v. Seattle Times, 59 Wn. App. 332, 798 P.2d 1155 (1990); Bentzen v. Demmons, 68 Wn, App. 339, 842 P.2d 1015 (1993); State Farm Mut. Auto. Ins. Co. v. Johnson, 72 Wn. App. 580, 871 P.2d 1066, review denied, 124 Wn.2d 1018 (1994)).
Mahler, 135 Wn.2d at 435.
Olympic S.S. Co. v. Centennial Ins. Co., 117 Wn.2d 37, 52, 811 P.2d 673 (1991).