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McVey v. Nationwide Mutual Insurance Co.6/21/1990
Robert and Kathy McVey, husband and wife, in their own right and as guardians of their minor daughter, Kristy McVey, appeal the summary dismissal of their action seeking declaratory relief against Nationwide Mutual Insurance Company and Farmers Insurance Company of Washington. We affirm.
On May 8, 1988, 14-year-old Kristy McVey was injured in an automobile accident while riding as a passenger in a
car driven by 14-year-old Sitka Morelli. Ms. Morelli's mother, Betty Rowe, owned the vehicle. She had not given the girls permission to use it.
The McVeys brought this action for declaratory relief against Farmers Insurance Company, Ms. Rowe's insurer, and against Nationwide Mutual Insurance Company, their own insurer. They contend that because Farmers denied liability coverage to Ms. Morelli, the vehicle was uninsured at the time of the accident.
The liability section of the Farmers policy reads:
Insured person does not mean:
3. Any person who uses a vehicle without having sufficient reason to believe that the use is with the permission of the owner.
It also states:
o vehicle shall be considered as your insured car unless there is sufficient reason to believe that the use is with permission of the owner, and unless it is used by you or a family member.
The Farmers policy defines "insured" for purposes of uninsured motorist (UIM) coverage as " ny . . . person while occupying your insured car." Farmers denied coverage based on the following UIM exclusion:
But no person shall be considered an insured person if the person uses a vehicle without having sufficient reason to believe that the use is with permission of the owner.
Nationwide also denied Ms. McVey's claim for UIM benefits based on its exclusion, which reads:
This Uninsured Motorist insurance does not apply as follows:
(2) It does not apply to use of any vehicle by an insured without permission of the owner.
The general conditions of the Nationwide policy also contain a specific exclusion for the insured's use of a vehicle without the owner's permission.
All parties moved for summary judgment. The court granted the motions of Nationwide and Farmers, based on the above quoted UIM exclusions, and entered judgment dismissing the McVeys' action.
First, the McVeys contend that the term "use" in the cited exclusions is ambiguous, i.e., it is unclear whether it includes persons who are occupying the vehicle, but not actually operating it.
Nationwide and Farmers argue Sears v. Grange Ins. Ass'n, 111 Wash. 2d 636, 762 P.2d 1141 (1988) controls. There, Ms. Sears was injured in an automobile accident while riding as a passenger in a car driven by Grange's insured. She recovered the limits of the policy insuring the motorist who negligently struck them; she also recovered under her own policy's UIM provisions. However, Grange refused to pay her under its UIM provisions which covered "'anyone using your covered auto with your permission.'" Sears, at 638. The issue was whether a passenger was using the automobile.
Since the policy did not define "use", Sears held that the following criteria should be applied in determining whether a person is using a vehicle:
(1) 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 orie
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