WILLIAM C. TOUCHETTE, Respondent, v. NORTHWESTERN MUTUAL INSURANCE COMPANY, Appellant.
No. 42062
En Banc.
March 2, 1972.
Petition for rehearing denied June 2, 1972.
327
In my opinion, the requirement that any employee submit to such a test or forfeit his employment invades his right of privacy and violates his right not to give evidence against himself. The test being so notoriously unreliable, and the “testee” having no opportunity or means of challenging the result, requiring an officer to submit to such a test is not a reasonable requirement. His refusal to submit should not be held by this court to constitute “just cause” for his dismissal.
I would affirm.
HUNTER and WRIGHT, JJ., concur with ROSELLINI, J.
Petition for rehearing denied June 2, 1972.
Vaughn E. Evans, for respondent.
HALE, J.—Is the statute (
Claude and Alice Touchette lived in King County; their regularly employed 22-year-old son, William C. Touchette, lived with them as a member of their household. February 1, 1968, the Touchettes purchased an automobile casualty insurance policy (No. FW 74894) from defendant, Northwestern Mutual Insurance Company. The first page of the contract recited that Claude M. and Alice K. Touchette were the named insureds and described their automobile as “63 Volk 1 Priv Passenger.” Also on this first page, the policy stated, “Insurance is afforded only as to the coverage or where applicable to the car and coverage for which a premium charge is indicated.” A 1958 Cadillac was subsequently substituted for the Volkswagen.
The policy continues:
A. Bodily Injury $50,000 each person $100,000 each occurrence $92.50
B. Property Damage $10,000 each occurrence $40.50
C. Medical Payments $1,000 each person $14.50
D. Uninsured Motorist Financial Responsibility Limits $3.00
Elsewhere in larger print than the standard clauses were captions declaring the contract to be a “Family Automobile Policy” or “Your Family Auto Policy.”
Plaintiff, July 27, 1969, while a member of his parents’ household, was driving a 1962 Triumph car, a vehicle not described in his parents’ policy of insurance, when his car collided with an automobile being driven by an uninsured motorist. Asserting coverage as a relative and member of his parents’ household, plaintiff brought this action against defendant insurance company seeking recovery under the uninsured motorist provision.
In one of those transactions which seem to trail off into thin air but is of little moment here, the Touchettes, in a vague sort of deal at an auto repair shop in early July, got rid of the Cadillac and their son emerged with the Triumph. Although the Cadillac was the named vehicle, its disposition would not, the parties agreed for this appeal, affect the uninsured motorist coverage afforded by the policy. An invoice or receipt recorded the Cadillac transaction as it related to the insurance policy:
Effective Date 3-10-69 Policy Number FW 74894 Coverage change of cars to 1958 Cad. Addition of Comprehensive Coverage-Premium $25.00; Addition of Uninsured Motorists Premium $2.50
The question before us, therefore, in reviewing a summary judgment, is not whether the Triumph became substituted for the 1958 Cadillac designated in the policy, but rather whether the contract of insurance afforded plaintiff uninsured motorist coverage.
The court granted plaintiff‘s motion for a summary judgment and held the insurance company liable upon principles of public policy as declared in
As augmented by
Coverage B—Uninsured Motorists (Damages for Bodily Injury): To pay all sums which the Insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called “bodily injury,” sustained by the Insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; . . .
“Insured” means:
(a) the named Insured and any relative;
and, under the Automobile Liability Section, the term “relative” was defined as a “relative of the named Insured who is a resident of the same household.”
Defendant insurance company relies principally on an exclusionary subsection of the uninsured motorist section of the policy, which says:
Exclusions—This policy does not apply under the Uninsured Motorists Section:
(a) to bodily injury to an Insured while occupying an automobile (other than an insured automobile) owned by the named Insured or a relative, or through being struck by such an automobile;
Defendant contends that, because plaintiff was driving his Triumph, an automobile which was neither described in nor carried a specific premium charge in his parents’ insurance policy, the exclusionary language of the above subsection cuts off his entitlement to uninsured motorist coverage. Plaintiff rests his claim, however, not on the Triumph as a replacement vehicle for the Cadillac under the terms of the policy but squarely upon what he asserts to be a binding public policy declared by statute, a public policy
We need not decide whether the terms of the contract alone without reference to the statutorily declared public policy afforded the coverage plaintiff seeks, for we think that the court correctly held that plaintiff was, as a matter of law, entitled to the same coverage as his parents under the uninsured motorist provision of their contract.
On and after January 1, 1968, no new policy or renewal of an existing policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in
RCW 46.29.490 , for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom, except that the named insured may be given the right to reject such coverage, and except that, unless the named insured requests such coverage in writing, such coverage need not be provided in or supplemental to a renewal policy where the named insured had rejected the coverage in connection with a policy previously issued to him by the same insurer.
(Italics ours.)
Neither of the named insureds had ever requested in writing—as the statute provides—that uninsured motorist coverage not be provided, nor had they ever rejected such coverage. And the record shows, too, that a specific premium charge was made at least once and possibly twice for that coverage.
There is no longer any judicial doubt that the state may regulate insurance, so closely is that industry affected with the public interest (43 Am. Jur. 2d Insurance § 60 (1969)), and regulatory statutes become a part of the policy of insurance. Occidental Life Ins. Co. v. Powers, 192 Wash. 475, 74 P.2d 27, 114 A.L.R. 531 (1937).
Thus, a valid statute becomes a part of and should be read into the insurance policy. Dowell, Inc. v. United Pac. Cas. Ins. Co., 191 Wash. 666, 72 P.2d 296 (1937); Williams v. Steamship Mut. Underwriting Ass‘n, Ltd., 45 Wn.2d 209, 273 P.2d 803 (1954); State Farm Mut. Auto. Ins. Co. v. Hinkel, 87 Nev. 478, 488 P.2d 1151 (1971);
The position taken by courts of this State, and by courts of other States, makes it clear that restriction upon the coverage provided by uninsured motorists provisions of automobile insurance policies is against public policy and is void. Nat‘l Automobile Insurance Assoc. v. Brumit, Fla.1957, 98 So.2d 330; Sellers v. United States Fidelity & Guaranty Co., Fla. 1966, 185 So.2d 689; Travelers Indemnity Co. v. Powell, Fla. App.1968, 206 So.2d 244; Butts v. State Farm Mutual Insur. Co., Fla. App.1968, 207 So.2d 73; Tuggle v. Government Employees Insur. Co., Fla.1968, 207 So.2d 674; Linkens v. Furman, 1964, 52 Ill. App.2d 1, 201 N.E.2d 645; Hendricks v. Meritplan Insurance Co., 205 Cal.App.2d 133, 22 Cal.Rptr. 682; Mission Insurance Company v. Brown, 1965, 47 Cal.Rptr. 363, 407 P.2d 275.
The statute does not contemplate a piecemeal whittling away of liability for injuries caused by uninsured motorists.
(Italics ours.) Contra: Rushing v. Allstate Ins. Co., 216 So. 2d 875 (La. App. 1968); Owens v. Allied Mut. Ins. Co., 15 Ariz. App. 181, 487 P.2d 402 (1971); McElyea v. Safeway Ins. Co., 131 Ill. App. 453, 266 N.E.2d 146 (1970).
Another statement of the governing principle concerning uninsured motorist insurance, when that coverage is engendered by statute, is found in Mission Ins. Co. v. Brown, 63 Cal. 2d 508, 407 P.2d 275, 47 Cal. Rptr. 363 (1965). Defendants there were passengers in an automobile insured by plaintiff insurance company; they were injured in Mexico in a collision with an uninsured vehicle at a place within 75
The statute clearly does not contemplate a piecemeal whittling away of liability, either territorially or under certain driving conditions, for injuries caused by uninsured motorists.
Accord: Mullis v. State Farm Mut. Auto. Ins. Co., 252 So. 2d 229 (Fla. 1971); State Farm Mut. Auto. Ins. Co. v. Hinkel, supra; Allstate Ins. Co. v. Meeks, 207 Va. 897, 153 S.E.2d 222 (1967); Gulf American Fire & Cas. Co. v. McNeal, 115 Ga. App. 286, 154 S.E.2d 411 (1967); Travelers Indem. Co. v. Powell, 206 So. 2d 244 (Fla. App. 1968); Butts v. State Farm Mut. Auto. Ins. Co., 207 So. 2d 73 (Fla. App. 1968); Lopez v. State Farm Fire & Cas. Co., 250 Cal. App. 2d 210, 58 Cal. Rptr. 243 (1967); Vaught v. State Farm Fire & Cas. Co., 413 F.2d 539 (8th Cir. 1969); Protective Fire & Cas. Co. v. Woten, 186 Neb. 212, 181 N.W.2d 835 (1970); California Cas. Indem. Exchange v. Steven, 5 Cal. App. 3d 304, 85 Cal. Rptr. 82 (1970).
This principle was properly epitomized in a statement made in Bankes v. State Farm Mut. Auto. Ins. Co., 216 Pa. Super. 162, 168, 264 A.2d 197 (1970):
In summary, our Supreme Court and Legislature have indicated that the provisions of the uninsured motorist act must be liberally construed so that innocent victims
will be protected from irresponsible drivers. The intent of this act is that an insured recover those damages which he would have received had the uninsured motorist maintained liability insurance.
The legislative purpose—to broaden greatly the protection of the public against economic consequences and partly to ameliorate the ravages from injuries at the hands of uninsured persons operating vehicles upon the public streets and highways—is not to be eroded or, as the cases say, whittled away by a myriad of legal niceties arising from exclusionary clauses.
We are, therefore, of the opinion that the language of the insurance contract purporting to provide coverage under the uninsured motorist section to “(a) the named Insured and any relative” and defining relative under the automobile liability section as “a relative of the named Insured who is a resident of the same household” must be read so as to afford to the son of the named insureds, living with them in their household, protection against uninsured motorists while operating his own automobile.
Affirmed.
HAMILTON, C.J., FINLEY, ROSELLINI, HUNTER, and WRIGHT, JJ., concur.
NEILL, J. (concurring)—As I understand the majority opinion, it reasons as follows:
(1) The statutory policy of
(2) Conversely, statutory policy does not impede separate clauses or definitions of “insured” for uninsured motorist purposes which afford a scope of coverage which is
(3) The exclusion clause attacked in this appeal is invalid in light of the above noted statutory policy. There is no parallel provision in the primary liability section, and the exclusion has the prohibited effect of narrowing the meaning of “insured” for purposes of uninsured motorist coverage. The exclusionary clause is independent from definitions in the contract; so its invalidity does not affect those other provisions.
(4) The insurance contract contains a separate definition of “insured” for purposes of uninsured motorist coverage, which is broader in scope than that in the primary liability section of the policy. It is, therefore, valid. Plaintiff is an “insured” under this separate definition.
I agree with the result, and with the majority‘s reasoning as I understand and have outlined it. I believe, however, that this brief concurrence is appropriate in order to set forth my perception of the majority rationale as the basis for concurrence.
In my view it would be a misreading of today‘s decision to infer therefrom that the statutory policy prohibits the parties from agreeing to narrower definitions of “insured” than that found applicable in the contract before us.
The policy of
STAFFORD, J., concurs with NEILL, J.