*1 bе admin- detention time should ble. Accordingly, pretrial maximum sentences credited istratively against Rinehart, Woods, Reanier, against petitioners Olds. petitioner minimum sentence mandatory Hale, C.J., Hunter, Stafford, Rosellini, Finley, JJ., concur. Brachtenbach, Wright, Utter, January 10, En 42785. Banc. 1974.] [No. Phillip Company, Respondent, Insurance et al., Appellants.
Ward appellants. Parker, Lester T. Murray,
Wayne Murray (of Waitt), Dunham for re- & *2 spondent. appeals Petitioner, Donovick, Mark from a J.
Finley, declaratory judgment Grays Superior Har- of the Court for County relieving respondent, Dairyland bor the Insurance liability wrongful a Co., of for defense of and exclusionary provi- judge death action. The trial held any precluded of a of other sions “use duty provide coverage to to defend or the limits liability policy appellant by respondent. automobile issued Mark Donovick the 1967 31, 1970, On October borrowed by pickup Donovick, Mike to trans- father, truck owned his Washington. driving port Westport, duck to While a boat trip, pickup which on an accident occurred in truck this fatally injured. Jay pedestrian, An Ward, minor, J. a was damages arising been out of accident has action for by parents Phillip against Mark Donovick and filed the deceased child. father of Ward, Company against to refused defend Insurance separate damages commenced this action for suit liability declaratory judgment determining seeking its for “use of othеr automobiles” clause. Section under a following provision (1) (b) the trial V unambiguous so toas relieve the court to be clear any responsibility policy. respondent under its Automobiles V of Other Use an or individual husband named Insured If the during policy period named insured, such and if
wife spouse if a resident of the of such individual same or the private passenger automobile household; covered owns policy, insurance as afforded this such respect coverages C, to A, B and with said automo- under bile mobile any private respect passenger applies auto- with provisions: subject following (a) coverages A in- and B the word “insured” Under (1) spouse provided Insured cludes named permission operation his actual is with scope permission, and is such
owner and ing within (2) any person organization not own- or only respect hiring automobile, or but or or to his its because of acts omissions (a) (1) an insured above.
(b) apply: insuring agreement does (1) any or automobile furnished or a either the named Insured than a member of the same household other private of such chauffeur or domestic servant spouse; named Insured or
(2) any arising operation accident out agency, repair shop, an automobile sales serv- storage garage public parking ice station, place; used automobile while in а business occupation spouse of such named Insured or except *3 private passenger oper- automobile occupied by ated or such Insured, named spouse, private chauffeur or domestic servant. The sole issue for our determination is whether the ex- clusionary provisions of the “use of other automobiles” respondent duty clause relieves the of its contractual against arising defend claims from the accident of October provide liability coverage 31, 1970, to the limits of policy. presented its This court not, heretofore, has been provision type. with an insurance of we However, do analyses compa- have the of benefit the and evaluations of provisions policies by rable of insurance the of courts other jurisdictions. interpret
Two of lines cases the “use of other automo- differently. biles” One clauses line of сase finds the clauses unambiguous. ambig- line the finds clauses are uous.
Apparently holding the bulk of decisional law follows the Supp. (D. Indem. Aler v. Travelers F. Md. 620. 1950). Therein, the was involved in insured an accident driving owned but vehicle seldom if while ever used 74-year-old personally his mother-in-law. The United judge Court in the the Aler case stated that States District exemption the insurance before the court coverage from
excludes the use of other automоbile (1) or a the insured member household (2) regular or a furnished for to the use insured member of his household. supra judge
Aler, the at 623. Aler The trial (2) the household, insured was a member of the same regular frequent car was furnished for use including grounds these household, insured, and on two deny operated plaintiff- held the clause provisions insured under the on his the insurance personal solely Aler car. The court not confronted fact that common insured was а member of a rely circumstance on the household, but could additional regular If the insured’s use of another car. there had been only car, no nonowned but fact of its by the as a member the common casual use arguable it is at least that trial court would household, Curiously enough, ambiguity. have found clause free support non- Aler cited a number of courts has been ground that the member on sole insured was a Fidelity e.g., See, a commоn household. Ransom v. &. Lontkowski v. Cas. 250 N.C. 108 S.E.2d Ignarski, 2d 561, N.W.2d 6 Wis. Leteff (La. Maryland 2d Ct. We 91 So. convincing case is author- doubt have considerable ity proposition. for this authority construing of other line of “use
The other *4 from the decision of the clause United stems Appeals the Circuit Travelers Sixth in Court States Pray, (6th Cir. also 204 F.2d See Indem. v. Co. 173 Cal. & Sur. 2d Western Cas. Juzefski very Pray pattern (1959). a factual involves 342 P.2d Pray, In a son was instant case. that in the similar driving his father’s Cadillac. accident while in an involved court that the us, the trial in case before As the a member of his also was father’s household. It was understanding practice found there was no between family allowing au- members the use another member’s permission tomobile, i.e., Cadillac, the to use father’s but occasionally requested given Cadillac the Appeals Pray father. The case United States Court of in strongly grammatical interpreta- differed with the earlier pre- tion of thе Aler, United States District Court in grammatical ferred own its construction and affirmed court, lower which had refused to follow Aler. reasoning Ap-
The salient Court of United States peals Pray, grammatical quib- however, does not rest in seriously bling. questioned policy- court whether a reasonably reading language holder could believe from that use what- ever of an automobile owned another member of the regard, Pray In would not be covered. household court stated: company . . that The insurance . asserts it was the company . intention . . that . . . operating of the insured when another auto- infrequent opera- to his
mobile was limited occasional “stranger’s” automobile; tion that, under no circumstances, was the insured intended be covered operating when an automobile owned a member of his gather policy, household. do not from We the entire in- exception provision, cluding the that the insured . . . naturally indulged any would have such remote notion. ordinary person that an We think would assume occasionally . . . his would covered when regularly permission, used, —not an automobile —he by a member his household. To assume that he only using would consider himself covered when au- of his, wife’s, tomobile or his chauffeur or domestic serv- extremely ant, stranger, or the automobile of a seems illogical. Pray, supra & Travelers Indem. Sur. Co. Co. v. at 824-25. large part, Pray decision not in the technical rests ambiguities arising grammatical from literalism, in the but ambiguities policy- inherent in the clause that lead a would *5 358 varying to in
holder believe his use of automobiles circum- was stances covered.
Virtually necessary engage to all courts have it grammatical interpretation a to detailed find clauses similar ambiguous unambiguous. to In Le the above either the by respondent, English case, twо were cited doctors teff unambig provision required to that establish a similar judge The trial in the Aler case commented: “While uous. meaning, ambiguous quoted it does clause is reading gather require close to its whole mean careful and supra ing.” Aler at v. Travelers Indem. 623. opinion, proper inquiry not whether a our is study, comprehend judge can,
learned scholar meaning contract, of an but whether the insur insurance meaningful layman ance сontract would be may peril legally be bound or held to under who at his coverage. language and extent of its stand nature interpreted policies accordance with insurance be average way rather man, it would be understood Equitable Zinn v. 6 in a sense. than technical Life (1940). 379, 107P.2d 921 Wn.2d in an insur It law that where clause is Hornbook meaning ambiguous, and construction ance applied, though must be even favorable the insured most may meaning. intendеd another v. have the insurer Jeffries 46 283 128 America, 543, Wn.2d P.2d Cas. Co. General v. United Commercial Travelers Kane Order (1940). Ambiguous P.2d America, 3 Wn.2d particularly, should construed in clauses, Brown Under insured. most favorable the manner Lloyd’s, 142, 332 P.2d at 53 Wn.2d writers Murray Pac. Ins. Wn. 472 P.2d v. Western (1970). ambiguous very in a clause real the above We find subject confusing structure, to its In addition sense. general coverage provisions into the is sandwiched respondent’s It is not found in the contract. exclusionary provisions cap- enumerated under title or — policy apply.” tion “Exclusions does not We think highly unlikely policyholder it would, under the reasonably case, facts the instant believe his insurance so preclude liability coverage. circumscribed so as *6 The result we reach in not to this case does do violence legitimate and understandable interests of insurers in limiting pre- their in to relation the amount paid provided language mium the insurance contract unambiguous. is clear and an words, other if any coverage carrier desires to exclude as whatsoever by automobiles owned members of the insured’s spelled policyholder household, be for this should out language. clear and unmistakable purpose
The twofold
“use of
other automobile”
(1)
prevent
receiving
is:
clause
an insured from
cover-
age on all household cars or
car of
another uninsured
by merely purchasing
single policy,
a
provide coverage
engaged
to the
insured when
the infre-
quent use of
Keeton,
nonowned
R.
vehicles.
Insurance Law
(1971);
Cyclopedia
§
§
4.9
12 Couch,
G.
Insurance Law
(2d
danger
45:238
ed. R. Anderson
of the as-
sumption
premium
of additional risks without an added
contemplated by
simply
the does not exist in the
instant case. Mark Donovick
no
other vehicles. His
pickup
use of the
truck was found
the trial court to infrequent.
present
Thus, this case
not
an
does
abuse at
exclusionary provision
which the
was directed.1
cases,
ostensibly
numerous
all
collected and cites
1The dissent has
interpretation
contrary
majority opinion’s
of the “use of other
perhaps
However,
an
the dissent
overreaction
clause.
point
specifically,
paints
More
with too broad a brush.
is that
wholly apposite,
most of the cases cited
the dissent do
seem to be
arguable exceptions
holdings in Rathbun v. Aetna
with the
Cas.
Maryland
& Sur.
Conn.
128 A.2d
Leteff
Co., supra;
Simon v.
Auto. Mut. Ins.
Hale, C.J., Wright, Utter, Brachten- Hunter, bach, JJ., concur. I
Hamilton, J. be inclined (dissenting) Although may — I am the majority, with the result reached sympathy unable the “use of other automobiles” wholly agree Hence, I clause here involved is am ambiguous. compelled to dissent. Donovick, Mark
Briefly, the facts are these. pertinent, II Chevy а 1962 purchased minor with his residing parents, for, obtained, applied 4-door 1970. He September sedan from for his automobile and paid to as hereafter referred Company, Insurance *7 Donovick, Mark’s parents, and Mildred Dairyland. Mike a 1968 Chevrolet family residence at kept Mark which and a 1967 Chevrolet pickup, Impala %-ton Indemnity provided Company if drove. Pacific seldom ever truck until and the Impala pickup for the liability coverage automobiles, minimally or was or uninsured “other” was, therefore, covered a common household member of not to be lengthy compilation Thus, of cases reason. the dissent’s for the latter case, where in the instant itself to the factual situation does not address usage regularity by was a household member. no there or misconceives words, to overlook seems the dissent In other disagree- general majority opinion. no There is reasoning of the basic they by because the dissent cited of the case authorities ment with most presented pattern problem which or at a fact applied clearly ambiguous to sit- when directed, and the clause is was usage Again, factor involved. the ultimate uations where just presented however, problem the instant case. Lum- not that Cf. Pulsifer, Supp. (D. 41 F. Me. Mut. Co. bermens considering particular that, setting simply majority factual holds policyholder reasonably case, could in the instant believe involved infrequent operation of a use or nonowned automobile his casual or was by liability under the “use of other covered provision. July 1970,when renewal thereof was com- refused pany. liability coverage Impala Thereafter, for the pickup truck was until obtained November 4, days giving litigation. after the accident rise this permission,
On 31, 1970, Mark, October with his father’s driving piсkup was truck in furtherance of his own purposes. He became involved in the fatal accident. Suit damages against parents. was initiated Mark and his De- Dairyland fense was tendered which tender was refused. litigation then determine instituted to extent, any, if of the issued Mark.
The sole issue is whether the “use of other automobiles” operat- clause excludes or extends to Mark while ing parents’ pickup his on the occasion truck and under the prevailing question. circumstances at the time entirety provides: The clause in its Automobiles
V Use Other Insured is an If the named individual or husband and during policy period insured, wife and if such named spouse of if or the such individual a resident of the same private passenger household, owns a automobile covered policy, this such insurance as is afforded coverages respect A, C, B and under with to said automo- applies respect any рrivate passenger with bile auto- subject provisions: following mobile (a) coverages A Under Band the word “insured” in- spouse provided the named cludes Insured and operation permission his actual is with the scope permission, owner and is within such (2) any person organization or not own- ing hiring only respect the automobile, but its because of acts or omissions of *8 (a) (1) an insured above. . (b) insuring agreement apply: does not (1) any by automobile owned or for furnished regular use to either the named Insured or a of member the same household other than a private chauffeur or domestic of servant such spouse; named Insured or
(2) any arising operation accident of out of agency, repair shop, serv- an automobile sales storage garage public parking station, ice or place; or used a business automobile while spouse occupation of nаmed Insured or such oper- except ated or private passenger automobile by occupied Insured, such named spouse, private chauffeur or domestic servant. similarly not uncom- clauses, ones, or worded are
Such liability policies. mon in standard automobile insurance provisions purpose intent of are The obvious and such during provide coverage to the named insured the occa- without or incidental usе of other automobiles sional possi- payment premium, to exclude a an additional but readily by interchangeable of other cars use ble regularly or used in- owned hand, i.e., at cars of the household but not described or members same sured increasing policy, of the thus risk insurance in the premium. corresponding company increase in the without a provision “drive cars” au- Annot., Exclusion from other automobile tomobile regularly by insurеd or member owned, hired, or used Cyclo- (1962); 13 Couch, household, 86 A.L.R.2d G. (2d 1965); § pedia ed. R. Anderson Insurance Law 45:956 (1963). §§ Automobile Insurance 105-06 7Am. Jur. 2d array purpose, startling Divining this intent apply interpret upon or clauses, such called courts directly tacitly or similarly have either ones, worded inapplicable applicable ambiguity as free of them in the individual cases war- circumstances facts unanimity, exclusionary provisions virtual ranted. With accepted pertinent here, been have as insofar clause, excluding not described in the cars insur- from as (a) are: owned or furnished which involved ance (b) insured, or for regular use of members of the same furnished English, Ins. Co. v. Ala. Auto. American household. McKinley Farm v. Colorado Bureau 2d 397 94 So. P.2d Iowa Colo. Mut. Mut.
363
Addy,
Ins. Co. v.
Rath-
132 Colo.
286
202,
P.2d 622
(1955);
bun Aetna
Co.,
v.
Cas. & Sur.
165,
144 Conn.
We thus have tribunals appeal circuits, in 6 and at least 5 United courts different problem which have encountered no district courts States ambiguity interpreting applying in and simi standard of other clauses. In vein it lar “use interesting to note Palmer v. Falls court, that this in Glens (1961), it 360 P.2d had before Wn.2d applied similar to one in the instant case and clause difficulty and facts of that case the clause without with any suggestion ambiguity. out Only Pray, (6th Indem. v. 204 F.2d Cir. Travelers Co. 1953) & 173 Cal. and v. Western Cas. Sur. Juzefski (1959), major- upon P.2d 928 relied 2d ity, seemingly proposition that such common stand for the ambiguous. accepted long are clauses and 937, these in 86 A.L.R.2d As indicated in annotation contrary literally in alonе a vast sea stand decisions virtually except authority gone unheeded, for have and Maryland supra; v. v. Lontkowski criticism. Leteff Ignarski, supra. Pray in reads sub-
The clause considered Juzefski stantially as follows: insuring agreement apply: (b) does “. . . by, part hired as of a automobile owned by,
frequent regular or furnished for of hired automobiles or a member of his use to the named insured . household . . Pray, supra at 823. Indem. Co.
Travelers Pray a 2-to-l decision found this clause in court, The not been inserted had between ambiguous a comma because phrase regular use to” and the phrase furnished “or Pray rightfully The dissent insured.” “the named punctuation authoritatively pointed is a most out that falli- interpretation writing, ble standard for of a and is refuge agreement. outermost in the construction of an Juzejski, likewise a 2-to-l decision, the court found phrase ambiguous, “his household” inter- preted it to mean that the insurеd covered operation would not come within the clause unless he was the head of the household. The dissent persuasive opinion supported far a more and is weight authority. represent extremely my-
Both cases thus an strained and opic view a clause which a substantial number of author- unambiguous, ities heretofore cited have found to be as interpretation well aas tortured of a clause somewhat differ- ent majority from the one involved in the instant case. The placing contrary is ill-advised in reliance on these cases overwhelming authority contrary. flood of pertinent the instant case is couched plain, ordinary language parses readily. down, Broken *11 simply provides: it insuring agreement apply: any This does (a) by (b) automobile or furnished for (c) (d)
use to either named insured or a member the same . household . . my any it view would be difficult to draft a clause ambiguity.
more concise freer of and/or way makeweight, majority Finally, by complains subject clause is of the that the not found under the fact caption appears title or to me to be “Exclusions.” grasping frail The is a for a straw. standard form undoubtedly liability policy approved the Insurance subject paragraph clearly The and Commissioner. type paragraph headed bold, and in black number phrase and the “Use Other Autоmobiles.” It extends coverage limiting coverage. as the extended as well Cer- tainly seeking policyholder, normal ascertain his coverage car, in connection with the use of another would difficulty locating pertinent no whatsoever encounter likely paragraph clause. He would be more if and confused among “sandwiched” were his extended com- confusion exclusions, would certainly if his extended provisions the limiting pounded elsewhere. placed from the paragraph were separated truck driven case, the pickup facts Under the day of the accident indisputably Donovick on Mark It, Mark. of the same household as to a member belonged therefore, provi- the ambit of fell within clause, Mark’s the “use of other automobiles” sions of issued of it covered was not him. trial court should be affirmed. judgment Tern., concur J., J. Pro Johnsen,
Stafford, J. Hamilton, January 17, 1974.] Banc. En 42556.
[Nos. Spokane L. Appellant, v. Orville Association, Education al., et Respondents.
Barnes