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Waters v. Farmers Insurance Co.

September 27, 1996

ROBERT WATERS AND EVE LYNN WATERS, HUSBAND AND WIFE, RESPONDENTS,
v.
FARMERS INSURANCE COMPANY OF WASHINGTON; APPELLANT, AND CYNTHIA BOCOTT, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF SETH WESLEY MILLER, DECEASED, AND AS GUARDIAN AD LITEM OF TARA MILLER, A MINOR; THOMAS MILLER, INDIVIDUALLY; AND BUNCE RENTAL COMPANY, INC., DEFENDANTS.



Appeal from Superior Court of Pierce County. Docket No: 92-2-09601-9. Date filed: 03/05/93. Judge signing: Hon. J K. Arnold.

Authored by David H. Armstrong. Concurring: Carroll C. Bridgewater, John E. Turner

The opinion of the court was delivered by: Armstrong

ARMSTRONG, J. -- Robert Waters struck an oncoming car while driving a forklift down a public road. Waters sought coverage from Farmers Insurance Company under his homeowner's policy, which excluded damage arising from the use of a motor vehicle. The trial court held that the forklift was not a motor vehicle within the meaning of the policy's exclusion. We affirm.

FACTS

Robert Waters rented a forklift from Bunce Rentals and asked that it be delivered to his house. Because a delivery truck for the forklift was unavailable, and because Waters's house was only a short distance away, a Bunce employee suggested that Waters rent a "drive-away" forklift, a Lion Diesel Liftall forklift. According to the manufacturer, Liftalls "are designed and built for rough terrain operation." A product brochure states, "Liftall's Towable Forklifts are easily and safely moved from job to job at highway speed." The forklift's specifications detail three operating speeds:

LOW RANGE . . . to 5 M.P.H.

DRIVING RANGE (Highway) . . . to 30 M.P.H.

TOWING RANGE . . . to Legal Freeway Speeds The forklift, however, did not have headlights, brake lights, mirrors, brakes on all four wheels, a windshield, a horn, or seat belts.

The forklift could be towed backwards by another vehicle. The forklift also could be carried on a truck or driven on the highway. In 1985, Bunce removed the towing assembly, and the forklift was then either driven or carried by truck to each rental site. A Bunce employee testified that this forklift previously had been driven along the highway on several occasions.

Waters drove the forklift from Bunce's lot on South Tacoma Way, in Tacoma, toward his house in Puyallup. While in Puyallup, the forklift suddenly veered and hit an oncoming car, killing one of the car's passengers. After the accident, Waters filed a declaratory judgment action against Farmers Insurance Company, seeking coverage under his homeowner's policy. The policy excludes bodily injury or property damage arising out of the use of a motor vehicle owned or operated by or rented or loaned to an insured. The policy defines a motor vehicle as:

8. Motor vehicle means:

a. a motorized land vehicle, including a trailer, semi-trailer or motorized bicycle, designed for travel on public roads.

b. any other motorized land vehicle designed for recreational use ...


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