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Holz v. North Pacific Insurance Co.12/27/1988
North Pacific Insurance Co. (North Pacific) appeals from the trial court's decision that an exclusionary clause in a policy issued by North Pacific to plaintiff Holz was, as applied to Holz, in violation of public policy and RCW 48.22.030. We reverse.
Facts
North Pacific issued a personal auto policy to insured, Gary Holz, for the policy period October 16, 1984, through April 16, 1985, with $60,000 liability coverage, $10,000 personal injury protection coverage, and $60,000 underinsured motorist coverage. The one policy listed a 1973 Chevrolet with a camper, a 1976 Datsun, and a 1973 Dodge Coronet. All three vehicles had the same liability, personal injury protection, and underinsured motorist policy limits.
On March 10, 1985, the insured, Sharon Holz, and her daughter, Christine, were passengers in the 1976 Datsun operated by Sharon's son, Brian. Brian became distracted and permitted the vehicle to leave the road, strike a utility pole, and land in a ditch.
All three occupants of the car sustained injuries, with Sharon Holz sustaining the most serious injuries. North Pacific settled the liability claim of Christine Holz for $4,000 and the claim of Sharon Holz for $56,000 under the full limits of the liability coverage of the North Pacific policy.
On July 24, 1986, after completion of the settlements under the liability section of the policy, Sharon Holz presented a claim and demand for arbitration under the underinsured motorist coverage of the North Pacific policy. The claim was denied by North Pacific, citing the fact that Sharon's 1976 Datsun did not fall within the following policy definition of an underinsured motor vehicle:
However, underinsured motor vehicle does not include any vehicle:
1. To which the Liability Coverage of this policy applies.
2. Owned by or furnished or available for the regular use of you or any family member, unless the covered person was neither operating nor occupying such vehicle at the time of the accident.
On June 1, 1987, Sharon Holz filed a complaint for a declaratory judgment seeking to have the court determine that the underinsured motorist coverage of the North Pacific policy was applicable and that North Pacific be ordered to submit to arbitration to determine the appropriate amount of damages payable. Both sides moved for judgment on the pleadings. The court ruled that the underinsured motorist coverage in the North Pacific policy was applicable on the grounds that the exclusionary clause relative to a covered auto was "in violation of public policy and RCW 48.22.030."
This appeal timely followed.
Underinsured Motorist Coverage
North Pacific contends that the policy on its face, as well as applicable statutes and case law, precludes the insured, as a passenger in her own automobile, to which liability coverage applies, from obtaining both liability policy coverage and underinsured motorist coverage.
Pursuant to RCW 48.22.030, insurers are required to offer underinsured motorist coverage, although their clients may choose not to purchase it. RCW 48.22.030(4); Millers Cas. Ins. Co. v. Briggs, 100 Wash. 2d 1, 3-4, 665 P.2d 891 (1983). An underinsured vehicle is a vehicle with respect to
which the sum of liability limits "applicable to a covered person after an accident is less than the applicable damages which the covered person is legally entitled to recover." RCW 48.22.030(1). The statute requires that
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