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Patriot General Insurance Co. v. Gutierrez

Court of Appeals of Washington, Division 3

February 24, 2015

Patriot General Insurance Company, Petitioner,
Jorge Gutierrez et al., Respondents

Oral Argument December 3, 2014

Appeal from Walla Walla Superior Court. Docket No: 12-2-00908-3. Judge signing: Honorable Marshall Scott Wolfram. Judgment or order under review. Date filed: 11/04/2013.

Patrick M. Paulich (of Thorsrud Cane & Paulich ), for petitioner.

Richard B. Kilpatrick (of Kilpatrick Law Group P C); Shannon M. Kilpatrick (of Dawson Brown PS ); and Peter J. Hess (of Hess Law Office PLLC ), for respondents.

Authored by George B. Fearing. Concurring: Kevin M. Korsmo, Laurel H. Siddoway.


Page 1278

Fearing, J.

[186 Wn.App. 104] ¶ 1 We granted discretionary review of the trial court's summary judgment ruling that Javier Gutierrez is an insured for purposes of underinsured motorist coverage on an automobile insurance policy purchased from Patriot General Insurance Company by Jorge Gutierrez, Javier's father. Patriot General insists that Javier is not an insured because Jorge failed to disclose him, on his initial insurance application, as a member of Jorge's household over the age of 14 years. We affirm summary judgment based on policy language

Page 1279

that qualifies Javier as an " insured person" despite his father's failure to disclose him.


¶ 2 On August 11, 2010, Jorge Gutierrez applied for car insurance from Patriot General Insurance Company, through [186 Wn.App. 105] the Tomas Miranda Insurance Agency, a local agency in Walla Walla. The application listed Jorge as the named insured and Jorge and his wife, Maria Carmona, as authorized drivers. Jorge initialed a paragraph stating that he had listed on his application everyone living with him age 14 or older. That paragraph reads:

I also certify that all persons age 14 or over who live with me temporarily or permanently and all persons who are regular operators of any vehicle to be insured have been listed on this application and reported to the Company. I declare that there are no operators of the vehicle(s) described in this application unless their names and ages are shown above or are provided in writing to the Company within 14 days of when they begin driving the vehicle(s) described in this application.

Clerk's Papers (CP) at 84. The policy application further states:

I hereby apply to the Company for a policy of insurance as set forth in this application on the basis of statements contained herein. I understand and agree that a routine inquiry may be made which will provide applicable information concerning character, general reputation, personal characteristics, mode of living and credit history. Upon written request, additional information as to the nature and scope of the report, if one is made, will be provided. I understand and agree that such policy shall be cancelled and the benefits available under such policy may be denied if such information is known to be false and would affect acceptance of the risk or would in any way affect the rating of the risk by the Company.

CP at 84.

¶ 3 At the time of completing the policy application, Jorge Gutierrez's son, Javier, age 18, lived at home with his father. In a declaration opposing Patriot General Insurance Company's summary judgment motion, Jorge Gutierrez testified he desired " full coverage" for his family, and he averred that he relied on Patriot General's agent, Tomas Miranda, to translate and help him complete the application. CP at 106. Jorge is a monolingual Spanish speaker and [186 Wn.App. 106] insists he did not understand that the application asked him to certify that his children would not be using the vehicles. Jorge Gutierrez recalls telling Tomas Miranda that his son, Javier, and his daughter, Viviana, would also be drivers. Neither party provided information to the trial court as to whether Patriot General would have charged a higher premium for the insurance policy if Jorge Gutierrez had listed his son in the application.

¶ 4 Patriot General issued an auto policy to Jorge Gutierrez with a coverage period running from October 29, 2010 to April 29, 2011. The policy listed only Jorge Gutierrez and Maria Carmona as authorized drivers.

¶ 5 The first page of the twelve-page Patriot General Insurance Company policy provides:

In return for your premium payment and subject to the terms and conditions of this policy, we will insure you for the coverages up to the limits of liability for which a premium is shown on the Declarations Page of this policy. This insurance applies only to car accidents and losses which happen while this policy is in force. This policy is issued by us in reliance upon the statements which you made in your application for insurance. If you have made any false statement in your application, this policy may not provide any coverage.

CP at 57. The policy includes a separate three-page amended " Underinsured Motorists Coverage Endorsement," which covers injuries caused by an underinsured motorist. In ...

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