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Mutual of Enumclaw Insurance Co. v. Jerome8/3/1992
. 2d 21, 26, 593 P.2d 160 (1979).
Here, neither the car nor any attachments in the car had anything to do with Ederer's injuries. The car was merely the situs of the accident that resulted from Jerome's improvident act of lighting firecrackers and accidentally dropping one in the car. Such conduct can hardly be construed as the sort of "motoring risk" that the parties intended to insure against under the policy. See State Farm Mut. Auto. Ins. Co. v. Centennial Ins. Co., 14 Wash. App. 541, 543, 543 P.2d 645 (1975) (the intentions of the parties to an insurance contract control the extent of coverage), review denied, 87 Wash. 2d 1003 (1976).
Looking at the situation from a different perspective clarifies this point. If, while riding in a car other than Ederer's,
Jerome threw a lit firecracker that accidentally landed in Ederer's car and caused him damages, Jerome would clearly be liable to Ederer, just as he unquestionably is in the present case. However, no one would seriously contend that Jerome's conduct, despite its accidental nature, was the type of use of an insured vehicle that an insurance company would expect to cover under a clause like the one at issue here. See Richland Knox Mut. Ins. Co. v. Kallen, 376 F.2d 360, 364-65 (6th Cir. 1967) (the lighting of a firecracker in a car does not involve the use of that car).
The flaw in the majority's analysis is that it fails to recognize that the portion of the insurance contract at issue here is a liability provision, not a provision for personal injury protection. Jerome is not entitled to have MOE pay the damages he owes Ederer simply because the policy is the Ederer family policy and a member of the Ederer family was injured. Rather, as discussed above, Jerome's coverage depends upon whether his use was a covered use that resulted in the accident that caused damages to Ederer. It was not.
The fact that the injured party in this case, Ederer, was also an insured under the policy, presents an odd situation. That oddity, however, does not alter the fundamental principles of liability coverage. Typically, a car owner purchases liability coverage for specified drivers of the car. Such coverage protects the owner from being held liable for the actions of a driver (including the owner) who injures another party. Similarly, liability coverage may be purchased to shield the car owner from liability to others for damages caused by the tortious act of a passenger in the covered car. As an insured, the passenger-tortfeasor is typically provided coverage as well.
However, passenger liability provisions are not limitless. Uses of the car to be covered under such provisions must be the type that the parties intended to insure. Use of a covered car for the purpose of lighting firecrackers is not such a use and, therefore, will not protect an insured passenger-tortfeasor from any resultant liability.
In sum, I would hold that Jerome's use of the car is determinative of MOE's obligation to Jerome under the policy and, further, that Jerome's use was not the type that the parties intended to cover under the liability provision of the Ederers' policy. Consequently, MOE should not be forced to pay Ederer his damages on behalf of Jerome. I would reverse the trial court and order that summary judgment be entered in favor of MOE.
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