Appeal from Superior Court of Whatcom County. Docket No: 94-2-01066-9. Date filed: 01/27/95. Judge signing: Hon. Michael F. Moynihan.
Authored by C. Kenneth Grosse. Concurring: Ann L. Ellington, H. Joseph Coleman.
The opinion of the court was delivered by: Grosse
GROSSE, J. -- Cheryl Wolf was on vacation with her daughter, Christina Wolf, when the car Christina was driving went off the road. *fn1 Christina's parents, Cheryl and David Wolf, are divorced but have joint custody of their daughter. Cheryl Wolf and Carmel Drewes, a passenger in the auto at the time, *fn2 filed claims against League General Insurance Company (League), the insurer of David Wolf, claiming Christina was covered under his policy. The claims were denied and this litigation ensued. League's policy provides that insured persons under its policy include relatives who, in turn, are persons living in the insured's household. We hold that, given the language of this policy, and in the circumstances of this case where divorced parents have joint custody with the child living with both as an integrated family member, the child must be considered as living in both households for purposes of insurance coverage.
Christina's parents were divorced in 1989. Since then they have shared joint custody of their daughters Christina and Lisa. David is an active participant in his children's lives. He purchased a home close to the one he once shared with his family, and furnished a bedroom for his daughters there. The visitation schedule was such that the daughters stayed with their father every other weekend and for five to six weeks in the summer. The evidence showed that as the girls got older, although most of their clothes went back and forth, there were furnishings, hair dryers, cosmetics, shampoo, and other possessions that remained at David's house.
The parenting plan filed with the dissolution decree indicated that for the purposes of jurisdiction only, Christina was a resident of her mother's house. The plan also stated the parents recognized the children's welfare could best be served by "our mutual cooperation as partners in parenting and by each of us providing a home in which the children are loved and to which the children belong: their mother's house and their father's house." (Emphasis added.)
At the time of the accident, David's insurance policy was in force, as was Cheryl's policy. David's policy provided that the insurer "will pay damages for which an insured person is legally liable because of bodily injury . . . resulting from the . . . use of an automobile." Under the policy, "insured persons" included "relatives." The policy section at issue defines "relative" as:
a person living in your [David's] household and related to you by blood, marriage or adoption, including a ward or foster child.
Cheryl was insured by Safeco Insurance Company (Safeco). Cheryl, Carmel, and David, individually and as the personal representative of Lisa Wolf's estate, made claims against Christina to Safeco and League. Safeco interpleaded its entire policy limits and filed an action asking the court to divide the proceeds among the claimants. Plaintiffs filed cross-claims against Christina. League refused to defend Christina or participate in the settlements claiming that Christina was not covered under her father's policy within the policy provision covering relatives "living in your household." After League refused to defend, Christina reached settlements with the plaintiffs. These settlements were not fully covered by the limits of Cheryl's policy.
In Safeco's action, the superior court approved the settlements, divided the Safeco policy proceeds, and entered judgment against Christina for the remaining uncompensated damages suffered by Cheryl and Carmel. Judgment was entered against Christina in favor of Cheryl and Carmel. *fn3 Cheryl and Carmel sought to compel League to indemnify Christina for the outstanding judgments. They sued not only for the coverage but for breach of contract and a violation of the Washington State Consumer Protection Act. They moved for summary judgment on the ground that, as a matter of law, Christina was an insured relative of David's household within the meaning of the League policy.
The trial court held that, as a matter of law, Christina was not living in her father's household at the time of the accident. The court set out its interpretation of the phrase "living with" and stated:
But my interpretation of the document or the phrase "living with" in the document means that they have to be living with at the time, and it becomes very fact specific.
I view it like this: If the parenting plan says, for example, "The son shall live with the mother Monday through Friday and shall live with the father on Saturday and Sunday," then it's very fact specific. And if the accident occurs on Wednesday, then the son is living with the mother. If it occurs on a Saturday or Sunday, then the son is living with the father, because it's very fact specific.
The facts that I have in this case -- and I think we all have to agree -- is that Christina, who was driving the car, was living with the mother at the time, because this was the mother's vacation time with the child in which the child was with the mother. This wasn't a situation where the child was visiting the father for the weekend and the accident occurred during the father's weekend. ...