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Cook v. Unigard Insurance Co.

January 21, 1997

DANIEL E. COOK, ADMINISTRATOR OF THE ESTATE OF MICHAEL G. COOK, DECEASED, APPELLANT,
v.
UNIGARD INSURANCE COMPANY, RESPONDENT.



Appeal from Superior Court of King County. Docket No: 95-2-06109-5. Date filed: 09/15/95. Judge signing: Hon. Deborah D. Fleck.

Authored by Susan R. Agid. Concurring: Faye C. Kennedy, C. Kenneth Grosse.

The opinion of the court was delivered by: Agid

AGID, J. -- Daniel E. Cook brought this action, as administrator of his son's estate, against Unigard Insurance Company (Unigard) to recover his full underinsured motorist policy limits. Unigard brought a motion for summary judgment, arguing that Cook was not entitled to recover the policy limits because his insurance policy contained an anti-stacking clause, and Cook had already recovered the maximum compensation allowed under that clause. The clause reads as follows:

If there is other applicable similar insurance available under more than one policy or provision of coverage:

1. Any recovery for damages for "property damage" or "bodily injury" sustained by an "insured" may equal but not exceed the higher of the applicable limit for any one vehicle under this insurance or any other insurance.

2. Any insurance we provide with respect to a vehicle you do not own shall be excess over any other collectible insurance.

3. We will pay only our share of the loss. Our share is the proportion that our limit of liability bears to the total of all applicable limits.

The trial court granted Unigard's motion. Cook appeals from the trial court's order. The parties stipulated to the facts below; therefore, the only question is whether Unigard was entitled to a judgment as a matter of law. Doyle v. State Farm Ins. Co., 61 Wash. App. 640, 642, 811 P.2d 968, review denied, 118 Wash. 2d 1005, 822 P.2d 288 (1991). Cook presents three arguments in support of his contention that the anti-stacking clause is invalid and cannot be enforced against him. Each of these issues has been previously resolved by this court against Cook's position. We therefore affirm the trial court's order. *fn1 Cook first contends that the anti-stacking clause is ambiguous because it provides a total recovery limit in the first paragraph and then states that Unigard's portion of the total recovery will be the proportion of Unigard's policy to the sum of all policies. This court has repeatedly held that similar anti-stacking clauses are not ambiguous. No ambiguity is created merely because the insured must read several clauses together. Doyle, 61 Wash. App. at 644. Cook also contends that including the anti-stacking clause renders the policy ambiguous because there is no reference to the clause in the main policy declaration. But each section of this policy is clearly labeled and set apart. "The fact that a policy is long, and that pertinent language is not contained on a single page does not, in itself, render the policy structurally ambiguous." State Farm Gen. Ins. Co. v. Emerson, 102 Wash. 2d 477, 484, 687 P.2d 1139 (1984).

Cook next argues that anti-stacking clauses violate Washington public policy because the clauses allow insurers to pay less than full coverage with no increased risk. Anti-stacking clauses are expressly permitted under RCW 48.22.030(6) which provides that, "the policy may provide that if an injured person has other similar insurance available to him under other policies, the total limits of liability of all coverages shall not exceed the higher of the applicable limits of the respective coverages." Further, this court has considered Cook's public policy argument and determined that anti-stacking clauses similar to this one do not violate public policy. Bates v. State Farm Mut. Auto. Ins. Co., 43 Wash. App. 720, 719 P.2d 171, review denied, 106 Wash. 2d 1014 (1986). When it considered the current underinsured motorist statute, the Legislature expressly rejected arguments that external stacking is required whenever the insured is covered by multiple policies. In choosing to permit such clauses, the Legislature overruled two cases which prohibited anti-stacking clauses. Federated Am. Ins. Co. v. Raynes, 88 Wash. 2d 439, 563 P.2d 815 (1977) (holding that when the insured pays for multiple coverage, she is entitled to full coverage under each of the policies); Cammel v. State Farm Mut. Auto. Ins. Co., 86 Wash. 2d 264, 543 P.2d 634 (1975) (holding that each of separate polices must provide cumulative coverage). Washington's public policy clearly permits anti-stacking clauses. Greengo v. Public Employees Mut. Ins. Co., 81 Wash. App. 482, 485, 914 P.2d 786 (1996).

Finally, Cook contends that the anti-stacking statute contravenes the underinsured motorist statute by allowing conditions on that coverage that do not apply to standard liability coverage and which diminish the underinsured motorist in relation to standard liability coverage. This question, too, was resolved against Cook in Bates, 43 Wash. App. 720, 719 P.2d 171. We agree with the Bates court that, when read together, RCW 48.22.030(6) which permits anti-stacking clauses is consistent with RCW 48.22.030(2) and (3) which require underinsured motorist coverage be made available in the same amount as the liability coverage. The statute does not prohibit additional conditions.

Affirmed.

WE CONCUR:

Faye C. Kennedy

C. Kenneth ...


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