Opinion
No. 21794-9-III.
Filed: March 9, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Yakima County. Docket No. 02-2-02043-6. Judgment or order under review. Date filed: 01/14/2003. Judge signing: Hon. Susan L Hahn.
Counsel for Appellant(s), Paul Hamilton Beattie Jr, Edgley Beattie PS, 201 E D St, Yakima, WA 98901.
Michael Scott Brumback, Hurst Brumback PLLC, 321 E Yakima Ave Ste 400, PO Box 88, Yakima, WA 98907-0088.
Counsel for Respondent(s), Steven M. Cronin, Attorney at Law, 115 N Washington St. Ste 3, Spokane, WA 99201-0657.
Ronald Worthington sought underinsured motorist (UIM) coverage through his State Farm policy. Determining its 'regular use' exclusion applied, State Farm denied coverage. Mr. Worthington brought a declaratory judgment action against State Farm for insurance coverage. The court granted summary judgment to State Farm, declaring there was no UIM coverage. Mr. Worthington appeals. We affirm.
In December 1993, Ronald Worthington started working as a food distributor for Vern's Sons. His duties included taking and filling orders as well as delivering them. In late 1994 or early 1995, Mr. Worthington became a sales representative and no longer made deliveries. He had a company car to use while employed as a sales representative.
The company then hired someone specifically to handle deliveries. Mr. Worthington would occasionally fill in for the delivery driver.
On July 27, 1998, Vern's Sons fired one of its delivery drivers. Mr. Worthington began filling in on four of the five delivery days. He drove his company car to where the trucks were parked and picked up a delivery truck to make the day's deliveries. At the end of the day, he returned the truck to its parking lot and drove home in his company car. He was not allowed to use the truck for his personal use.
While driving the delivery truck on August 19, 1998, Mr. Worthington was involved in an automobile accident. He was awarded a permanent partial disability from workers' compensation as a result of this accident. He also collected the $25,000 liability limits from the driver who caused the accident and $25,000 from Vern's Sons' UIM coverage on the delivery vehicle.
Mr. Worthington then looked to State Farm's UIM coverage on his personal vehicle. State Farm denied coverage. Mr. Worthington then filed this suit against State Farm for a declaration of coverage. Claiming the 'regular use' exception in the policy applied and precluded coverage, State Farm moved for summary judgment. The court granted the motion; this appeal follows.
In reviewing an order of summary judgment, this court engages in the same inquiry as the trial court. Progressive Northwestern Ins. Co. v. Hoverter, 65 Wn. App. 872, 876, 829 P.2d 783 (1992). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). This court considers all facts and reasonable inferences in the light most favorable to the nonmoving party. Liberty Mut. Ins. Co. v. Tripp, 144 Wn.2d 1, 10, 25 P.3d 997 (2001). Summary judgment is appropriate only if reasonable persons could reach but one conclusion. Reynolds v. Farmers Ins. Co., 90 Wn. App. 880, 884, 960 P.2d 432 (1998).
Mr. Worthington's UIM and personal injury protection coverages both exclude bodily injury to the insured while the insured is operating or occupying a motor vehicle available for his regular use. The issue is whether the delivery truck was available for Mr. Worthington's regular use.
The interpretation of an insurance provision is a question of law. Rones v. Safeco Ins. Co., 119 Wn.2d 650, 654, 835 P.2d 1036 (1992). Policy language is interpreted as the average person would understand it. Getz v. Progressive Specialty Ins. Co., 106 Wn. App. 184, 186-87, 22 P.3d 835 (2001). Exclusions are strictly construed against the insurer. Id. at 187. Any ambiguities in the policy are also interpreted in favor of the insured. Abbott v. Gen. Accident Group, 39 Wn. App. 263, 267, 693 P.2d 130 (1984), review denied, 103 Wn.2d 1041 (1985). But when the language in the insurance policy is clear and unambiguous, courts will enforce the policy as written. Allstate Ins. Co. v. Peasley, 131 Wn.2d 420, 424, 932 P.2d 1244 (1997).
The purpose of the 'regular use' exclusion is "to provide coverage for isolated use without the payment of an additional premium, but to disallow the interchangeable use of other cars which are not covered by the policy." Ross v. State Farm Mut. Auto. Ins. Co., 132 Wn.2d 507, 519-20, 940 P.2d 252 (1997) (quoting Grange Ins. Ass'n v. MacKenzie, 103 Wn.2d 708, 712, 694 P.2d 1087 (1985)). Insurance companies have an interest in preventing an increase in risk without a corresponding increase in premium. Grange, 103 Wn.2d at 712. The risk is related solely to the amount of time the car is driven, not the reason the car is driven. Id.
Washington courts have generally found the 'regular use' exclusion to be unambiguous. Eddy v. Fid. Guar. Ins. Underwriters, Inc., 113 Wn.2d 168, 175, 776 P.2d 966 (1989); MacKenzie, 103 Wn.2d at 713; Hoverter, 65 Wn. App. at 877; Farmers Ins. Co. v. Koehler, 52 Wn. App. 822, 825, 764 P.2d 1005 (1988). In only one case, Dairyland Ins. Co. v. Ward, 83 Wn.2d 353, 358-59, 517 P.2d 966 (1974), has a Washington court found the provision ambiguous. But there, the exclusion was not included with the provisions setting out other exclusions, but rather was 'sandwiched into the general coverage provisions' of the contract. Id. at 358. This court in Koehler declined to extend Dairyland's holding that the 'regular use' exclusion was ambiguous due to its confusing structure to the situation where the exclusion was specifically set out in the exclusion section of the policy. Koehler, 52 Wn. App. at 823-25. The State Farm policy language is nearly identical to that in Koehler and the exclusion was listed in the 'exclusion' section of the policy. In these circumstances, the 'regular use' exclusion here is unambiguous.
Was the delivery vehicle available for Mr. Worthington's regular use? There is no specific test for determining whether a vehicle is available for regular use. The type of use most often excluded, however, is frequent and unrestricted use. See Koehler, 52 Wn. App. at 824-25. But use during a specific time or for a specific purpose has also qualified as regular use. See Hoverter, 65 Wn. App. at 878.
At the time of the accident, Mr. Worthington was filling in for a delivery driver. He drove the vehicle every Tuesday through Friday to make deliveries. The accident occurred while he was indeed making deliveries. He did not have exclusive or unrestricted use of the delivery vehicle, but he did regularly use it on certain designated days for a specific purpose. This is regular use.
Mr. Worthington claims that his use cannot be deemed regular because he was temporarily filling in as a delivery driver. But the temporary nature of his fill-in role is irrelevant to whether his use was regular. At the time, it was.
He asks this court to adopt a 30-day requirement for the 'regular use' exclusion, arguing that the regular use exceptions should not apply until the insured enjoys the exclusive use of the vehicle for 30 days. But such a rule would require this court to rewrite the insurance policy, which we will not do. See Panorama Vill. Condo. Ass'n Bd. v. Allstate Ins. Co., 144 Wn.2d 130, 137, 26 P.3d 910 (2001).
Mr. Worthington has requested an award of attorney fees in his brief. Because he is not the prevailing party his request is denied.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, J. and SCHULTHEIS, J. concur.