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Mutual of Enumclaw Insurance Co. v. Jerome8/3/1992
The insurer, Mutual of Enumclaw Insurance Company (Mutual of Enumclaw) appeals from the grant of summary judgment in favor of the insureds, Matthew Ederer and Joseph Jerome, Jr. (hereinafter referred to collectively as "the Ederers"). Mutual of Enumclaw contends that the trial court erred in concluding that Ederer's damages were covered under the liability provision of his parents' automobile insurance policy. We affirm.
I
On the evening of June 28, 1989, Matthew Ederer, Joseph Jerome, Jr., and Chris Markey were working at McDonald's restaurant in Kirkland, Washington. They finished their shifts around 8:30 p.m. and left work in a 1987 Acura. The
car was owned by Ederer's parents and insured by Mutual of Enumclaw. Ederer drove the car to another McDonald's restaurant in Juanita, Washington.
After spending about 10 minutes at the McDonald's in Juanita, Ederer and his companions decided to leave and reentered the car. Ederer sat in the driver's seat, Jerome sat in the front passenger seat, and Markey sat in the backseat behind Jerome. As Ederer began to back out of the parking space, Jerome wound together the fuses of two or three "Jumping Jack" fireworks and lit them. Jerome then attempted to throw the lighted firecrackers out of the open front passenger window. However, one or two of the firecrackers dropped inside the vehicle and ignited a bag of fireworks. The fireworks in the bag "went off", causing the vehicle to fill with dense smoke.
Ederer and Jerome attempted to extinguish the burning fireworks. When they were unable to do so, Jerome quickly exited the car. Ederer proceeded to bring the car to a stop and eventually exited.
Ederer later testified that he was in shock when he left the car and did not know at that point whether the car's interior had caught fire or even whether he had been burned. Nevertheless, Ederer remembered that he was worried about the damage to the car because he had previously totaled one of his parents' cars. Thus, after leaving the car, Ederer ran to the front passenger side and attempted to remove the burning fireworks from inside. In the course of doing so, Ederer was severely burned. The car was destroyed by the fire.
Ederer commenced a negligence action against Jerome. As a passenger in the Ederers' car, Jerome qualified as an insured under the liability provision of the Ederers' automobile insurance policy. According to that provision, Mutual of
Enumclaw was required to pay "all sums the insured must legally pay as damages, because of bodily injury or property damage to which this insurance applies." Jerome tendered the negligence claim to Mutual of Enumclaw so that it would defend against the claim and indemnify Jerome for Ederer's damages. Mutual of Enumclaw accepted Jerome's tender under a full reservation of rights.
The negligence action was placed in mandatory arbitration. The arbitrator found Jerome negligent and also determined that Ederer had been 45 percent contributorily negligent in failing to exercise reasonable care for his own safety. The arbitrator calculated the amount of Ederer's damages at $41,400 and, after reducing that sum by 45 percent, ordered a net award of $22,770. The arbitration award was not appealed by either party, and final judgment was entered.
Meanwhile, Mutual of Enumclaw filed a declaratory action to determine its rights and liabilities under the terms of the policy. Ederer and Mutual of Enumclaw both moved for summary judgment. The trial court granted Ederer's motion and denied Mutual of Enumclaw's motion.
Subsequently, an amended order was entered which reflected the addition of Jero
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