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Western National Assurance Co. v. Good

January 27, 1997

WESTERN NATIONAL ASSURANCE COMPANY, A WASHINGTON CORPORATION, RESPONDENT/ CROSS-APPELLANT,
v.
KATHLEEN A. GOOD, INDIVIDUALLY AS PERSONAL REPRESENTATIVE OF THE ESTATE OF DAROLD R. GOOD; AND AS GUARDIAN FOR ERIN GOOD AND KATHLEEN E. GOOD, MINORS, APPELLANTS/ CROSS-RESPONDENTS.



Appeal from Superior Court of King County. Docket No: 94-2-21344-0. Date filed: 03/24/95. Judge signing: Hon. Michael S. Spearman.

Webster, J. WE Concur

The opinion of the court was delivered by: Webster

WEBSTER, J. -- In this automobile coverage dispute, we are asked to decide if a bulldozer is a vehicle operated on tracks. Two commonly used dictionaries, the bulldozer's owner, and an equipment dealer's shop foreman all agree that the bulldozer operates on tracks. As a result, we agree with the trial court: because the bulldozer operates on tracks, it is excluded under the automobile policy. We affirm summary judgment in favor of the insurer.

FACTS

When Darold Good wanted to clear part of his ten acre Vashon Island property he asked his friend, Wayne Moore, to help him. Together, over a period of two years, they used Moore's 1969 John Deere loader to bulldoze around tree roots and then knock trees over. Tragically, a tree fell on Good while Moore was operating the loader. After partially recovering over six months, Good died. His estate contends that it can demonstrate damages of one and a half million dollars.

Good's widow filed a claim with Moore's auto and homeowner insurer, Farmers Insurance Company. Farmers denied the auto claim, but agreed to pay its $300,000 policy limit under the homeowner policy.

Then, eight and half months after the tree fell on Good, his widow informed the Good's automobile insurer of her husband's injury and death. She and the estate sought payment of $500,000 under the policy's underinsured motorist coverage. As a result, Western National filed this declaratory judgment action. On cross-motions for summary judgment, the trial court initially held that the bulldozer was an underinsured motor vehicle, but that an issue of fact precluded judgment. That disputed fact, however, concerned the policy's definition of underinsured motor vehicle: "'underinsured motor vehicle' does not include any vehicle or equipment: . . . Operated on rails or tracks." *fn1 Western National had already submitted Moore's deposition, in which he described his bulldozer as operating on "tracks." It subsequently filed a declaration from a shop foreman for an equipment dealer specializing in John Deere equipment giving the same opinion. The trial court, relying on this testimony, then held that Western National was not liable for Good's injuries under the underinsured motorists coverage provision. Mrs. Good and the estate appeal.

Discussion

Coverage

Resolving this appeal requires the court to interpret a contract for automobile insurance, a question of law. *fn2 We assume, without deciding, that the bulldozer was a motor vehicle. *fn3 Consequently, we turn to the definition of underinsured motor vehicle, specifically that part of the definition which excepts "any vehicle or equipment . . . operated on rails or tracks." We interpret insurance policy terms in their plain, ordinary and popular sense. *fn4 This plain meaning understanding reflects the risk, subject matter, and purposes of the entire contract. *fn5 Thus, when interpreting the definition of underinsured motor vehicle, we understand the attendant risk to be related to vehicles transversing roads, the subject matter to relate to the absence or shortcomings of another driver's liability insurance, and the purpose being to ensure that a person who is damaged by another on the public highways can still recover compensation despite the negligent driver's inability to answer in damages.

Given these consideration, the definition of uninsured motor vehicles -- that excepts "any vehicle or equipment . . . operated on rails or tracks" -- is unambiguous. The dictionary definition of "track" includes a description of the crawler tread used by this particular vehicle: "either of the two continuous roller belts over which tanks, some tractors, etc. are equipped for moving over rough ground." *fn6 Another dictionary defines track as "a caterpillar tread." *fn7 Further, both an expert and the owner/operator defined the devices upon which the bulldozer operated to be on tracks. Under the unambiguous terms of the policy, the bulldozer is not an underinsured motor vehicle.

Common sense supports this Conclusion. For example, in Sperry v. Maki, *fn8 the court held an airplane was not a motor vehicle under an automobile insurance policy. Similarly, we think that insurance purveyors and consumers alike would be surprised if the court found automobile insurance coverage for earth moving machinery being operated on private land. Such a holding would conflict with the purpose of the contract and the respective risks for which the parties contracted.

Still, Good reasons that the terms "rails" and "tracks" are essentially synonymous, and "operated on rails or tracks" only applies to trains, trolleys or monorails. App. Br. at 20. Were this the case, the policy would not, using the disjunctive, state "rail or tracks." The disjunctive indicates that both terms in the sentence should be given independent meaning. *fn9 Further, if the policy intended to limit its scope to railroad tracks, it would have modified "rails or tracks" with the word "stationary." Here, the phrase employed includes stationary, as well as moving tracks.

Good also argues that the policy's later use of "rails or crawler treads" in the personal injury protection part of the policy demonstrates that crawler treads are different than tracks and that bulldozers run on crawler treads, not tracks. First, the different terms are used when describing different coverages. Second, only the John Deere foreman shed light on use of the different terms: he opined that crawler treads and tracks are synonymous terms. Thus, even though the same policy uses "crawler treads" and ...


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