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 In his opposition to Defendant’s motion, Plaintiff states that “[t]here is no dispute on

the operative facts stated in defendant’s brief.” Pl.’s Opp., docket no. 25, at 3.

ORDER -1-

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

ADANE TEDLA,

Plaintiff,

v.

METROPOLITAN GROUP PROPERTY

AND CASUALTY INSURANCE

COMPANY,

Defendant.

No. C06-108Z

ORDER

This matter comes before the Court on Plaintiff’s motion for summary judgment,

docket no. 18, and Defendant’s motion for summary judgment, docket no. 21. Having

reviewed the parties’ briefs and declarations in support thereof, the Court enters the

following Order.

BACKGROUND

This matter involves a dispute as to whether MetLife policy no. 5627361281 (the

“Auto Policy”) provided liability coverage to Jennifer Kim when she caused an accident with

Plaintiff Adane Tedla. Docket nos. 18 and 21. There is no dispute as to the relevant facts.1

The parties disagree only as to how those facts impact coverage under the Auto Policy.

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ORDER -2-

On January 17, 2003, Jennifer Kim borrowed a 2002 Honda Accord with permission,

drove it to downtown Seattle, and caused an accident by colliding with Plaintiff’s automobile

after failing to yield the right of way. Rankin Decl., docket no. 22, Ex B (Kim Dep. at 58-

59), C (Tedla’s Compl. for Damages at 61-62). Tedla filed suit against Jennifer in state

court. Id. at Ex. C. Jennifer did not appear, and the King County Superior Court entered

judgment against her for $161,549.89 plus fees and costs. Id. at Ex D (state-court default

judgment).

At the time of the accident, Jennifer Kim lived in a house with, among others, Kyong

Kim, Rita Lim, and Woo Kim. Rankin Decl., Ex. B (Kim Dep. at 4, 8). Kyong Kim is

Jennifer’s step-mother and was the registered owner of the Honda in question. Kyong Kim

resided in Jennifer’s home. Id. (Kim Dep. at 8). Rita Lim, Jennifer’s step-sister and the

daughter of Kyong Kim, regularly drove the Honda and lent it to Jennifer on the day of the

accident. Id. (Kim Dep. at 8, 15-16). Woo Kim is Jennifer’s half-sister. Id. (Kim Dep. at

8). Woo Kim was the named insured on the Auto Policy at issue in this litigation. Rankin

Dep., Ex A. The insured vehicle under the Auto Policy was Woo’s 2001 Volkswagen. Id.

The Auto Policy lists Woo Kim as the “Named Insured” and the 2001 Volkswagen as

the “Insured Vehicle(s).” Id. at Ex. A (policy at 5). The Auto Policy also lists four

“Household Drivers”: Woo Kim, Rita Lyn [sic], Jennifer Kim, and Andrew Kim. Id. at 6. 

The relevant coverage provision in the Auto Policy states as follows:

We will pay damages for bodily injury and property damage to others for which

the law holds an insured responsible because of an accident which results from

the ownership, maintenance or use of a covered automobile, a non-owned

automobile or a trailer . . . .

Id. at 13 (bold in original, italics added). There is no dispute that the Honda does not qualify

as a “covered automobile” or a “trailer” under the policy. With respect to a “non-owned

automobile,” an “insured” is defined as follows: 

“Insured” means . . . with respect to a non-owned automobile, you or any

relative. The operation or use of such vehicle must have been with the

permission of, or reasonably believed to have been with the permission of, the

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ORDER -3-

owner. The operation or use must also have been within the scope of permission

given.

Id. at 12 (emphasis in original). The parties disagree as to whether Jennifer Kim was using a

“non-owned automobile” under the Auto Policy. The Auto Policy provides the following

definition for the term “non-owned automobile”:

“NON-OWNED AUTOMOBILE” means:

1. an automobile which is not owned by, furnished to, or made available for

regular use to you or any resident in your household.

Id. at 13 (emphasis in original). Defendant contends that Jennifer Kim was not using a “nonowned automobile,” as defined in the Auto Policy, at the time of the accident. However,

there is no dispute that Jennifer Kim would qualify as an “insured” if she was using a “nonowned automobile” because she is a “relative” of Woo Kim (the named insured) and she

borrowed the Honda with the permission of Rita Lim. Thus, the dispositive question as to

coverage is whether the Honda used by Jennifer Kim was a “non-owned automobile” under

the Auto Policy.

In addition to the scope of the coverage for “non-owned automobiles,” the parties

disagree as to whether the following exclusion applies:

COVERAGE EXCLUSIONS

We do not cover:

L. a non-owned automobile while used by a relative who owns, leases or has

available for their regular use, a motor vehicle not described in the

Declarations.

Id. at 14 (emphasis in original). At the time of the accident, Jennifer owned a Mazda 626

that had not been functioning for approximately one year. Id. at Ex. B (Kim Dep. at 11). 

Sometime after the January 17 accident, the Mazda was repossessed. Id. (Kim Dep. at 12). 

The Mazda did not have any insurance coverage. Id. (Kim Dep. at 21).

//

//

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ORDER -4-

DISCUSSION

Summary judgment is appropriate when the movant demonstrates that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a

matter of law. FED. R. CIV. P. 56(c); Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th

Cir. 2000). The party moving for summary judgment “bears the initial responsibility of

informing the district court of the basis for its motion, and identifying those portions of ‘the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material

fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting FED. R. CIV. P. 56(c)). 

Once the moving party meets its initial responsibility, the burden shifts to the non-moving

party to establish that a genuine issue as to any material fact exists. Matsushita Elec. Indus.

Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non-moving party must

present significant probative evidence tending to support its claim or defense. Intel Corp. v.

Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991). Evidence submitted

by a party opposing summary judgment is presumed valid, and all reasonable inferences that

may be drawn from that evidence must be drawn in favor of the non-moving party. 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In Washington State, the

interpretation of an insurance policy is a question of law. Grange Ins. Co. v. Brosseu, 113

Wn.2d 91, 95 (1989).

In Washington State, the interpretation of an insurance policy is a question of law. 

Grange Ins. Co. v. Brosseu, 113 Wn.2d 91, 95 (1989). An insurance policy “is construed as

a whole, and ‘should be given a fair, reasonable, and sensible construction as would be given

to the contract by the average person purchasing insurance.’” Grange, 113 Wn.2d at 95

(citation omitted). If the language in the contract is clear and unambiguous, it must be

enforced as written. Washington Pub. Util. Districts’ Utils. Sys. v. Pub. Util. Dist. No. 1,

112 Wn.2d 1, 10, (1989). Courts interpreting insurance policies are generally bound by the

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ORDER -5-

definitions provided therein. Overton v. Consl. Ins. Co., 145 Wn.2d 427 (citing Kitsap

County v. Allstate Ins. Co., 136 Wn.2d 567, 576 (1998)). 

In this case, Defendant contends that there is no coverage for Jennifer Kim’s use of

the Honda under the definition of a “non-owned automobile.” Defendant also argues that the

subsection L. of the coverage exclusions bars coverage. In opposition, Plaintiff argues that

the Court must disregard the defined terms in the Auto Policy because of public policy

considerations. Plaintiff also maintains that the exclusion in subsection L. does not apply

because Jennifer Kim’s Mazda was non-functioning for approximately one year prior to, and

at the time of, the accident and was later repossessed.

1. “Non-Owned Automobile” Coverage

Defendant argues that the plain language of the Auto Policy does not extend to the

circumstances under which Jennifer Kim’s accident occurred. The Auto Policy covers

insureds for use of a “non-owned automobile,” and defines that term as follows:

“NON-OWNED AUTOMOBILE” means:

1. an automobile which is not owned by, furnished to, or made available for

regular use to you or any resident in your household.

Id. at 13 (bold in original). Defendant contends that the plain language of this provision

limits the scope of “non-owned automobiles” to automobiles that are (1) “not owned by . . .

[Woo] or any resident in [Woo’s] household” or (2) “not . . . made available for regular use

to [Woo] or any resident in [Woo’s] household.” It is undisputed that the Honda in question

was (1) owned by Kyung Kim, a resident of Woo’s household, and (2) made available for

regular use to Rita Kim, also a resident of Woo’s household. See Rankin Decl., Ex B (Kim

Dep. at 8, 15-16). Thus, two separate clauses in definition of “non-owned automobile” (the

“ownership” and “regular use” clauses) exclude Jennifer Kim’s use of the Honda from that

definition.

In opposition, Plaintiff concedes that the plain language of the “non-owned

automobile” definition does not include the circumstances under which Jennifer Kim used

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ORDER -6-

the Honda on the day of the accident. However, Plaintiff argues that the Court should deem

the definition unenforceable because it violates public policy. See Mutual of Enumclaw Ins.

Co. v. Wiscomb, 97 Wn.2d 203, 210 (1982) (“As a private contractor, the insurer is

ordinarily permitted to limit its liability unless inconsistent with public policy”); Mendoza v.

Rivera-Chavez, 140 Wn.2d 659, 662-63 (2000) (“‘Public policy’ is a nebulous term and on

the whole, courts are reluctant to hold that a clause in an insurance policy is in violation of

public policy,” and “it has been held that a contract will not violate public policy unless it is

prohibited by statute, condemned by judicial decision, or contrary to the public morals”). 

Plaintiff relies primarily on Dairyland Insurance Company v. Ward, 83 Wn.2d 353

(1974), in arguing that the Auto Policy definition of “non-owned automobile” has been

“condemned by judicial decision.” In Dairyland, the insured lived with his father, who

owned an uninsured pick-up. 83 Wn.2d at 354. The insured borrowed his father’s pick-up

and caused an accident that killed a pedestrian. Id. The insurer refused to defend or

indemnify the insured based on the following provisions of the policy:

V Use of Other Automobiles

If the named Insured is an individual or husband and wife and if during the

policy period such named insured, or the spouse of such individual if a resident

of the same household, owns a private passenger automobile covered by this

policy, such insurance as is afforded by this policy under coverages A, B and

C, with respect to said automobile applies with respect to any private passenger

automobile subject to the following provisions:

(a) Under coverages A and B the word ‘insured’ includes (1) the named

Insured and spouse provided his actual operation is with the permission of the

owner and is within the scope of such permission, and (2) any other person or

organization not owning or hiring the automobile, but only with respect to his

or its liability because of acts or omissions of an insured (a)(1) above.

(b) This insuring agreement does not apply:

(1) to any automobile owned by or furnished for regular use to either the

named Insured or a member of the same household other than a private

chauffeur or domestic servant of such named Insured or spouse;

(2) to any accident arising out of the operation of an automobile sales agency,

repair shop, service station, storage garage or public parking place;

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2

 The Dairyland Court also cited the “twofold purpose” of such “use of other automobile”

clauses: “(1) to prevent an insured from receiving coverage on all household cars or another

uninsured car of the insured by merely purchasing a single policy, and (2) to provide coverage

to the insured when engaged in the infrequent use of non-owned vehicles.” Id. at 359 (citing R.

Keeton, INSURANCE LAW § 4.9 (1971); 12 G. Couch, CYCLOPEDIA OF INSURANCE LAW § 45:238

(2d ed. R. Anderson 1964).

ORDER -7-

(3) to any automobile while used in a business or occupation of such named

Insured or spouse except a private passenger automobile operated or occupied

by such named Insured, spouse, private chauffeur or domestic servant.

Id. at 354-55 (emphasis added). The insured argued that this provision was ambiguous, and

the Washington State Supreme Court agreed.

The Dairyland Court stated that “the proper inquiry is not whether a learned judge or

scholar can, with study, comprehend the meaning of an insurance contract, but whether the

insurance policy contract would be meaningful to the layman who at his peril may be legally

bound or held to understand the nature and extent of its coverage.” Id. at 358. The

Dairyland Court also noted the general rule that “where a clause in an insurance policy is

ambiguous, the meaning and construction most favorable to the insured must be applied,

even though the insurer may have intended another meaning.” Id. Ultimately, the Dairlyand

Court held as follows: 

[T]he above clause [is] ambiguous in a very real sense. In addition to its

confusing structure, the subject clause is sandwiched into the general coverage

provisions of respondent’s insurance contract. It is not found in the enumerated

exclusionary provisions under the title or caption ‘EXCLUSIONS-This policy

does not apply’. We think it highly unlikely that a policyholder would, under the

facts of the instant case, reasonably believe his insurance so circumscribed so as

to preclude liability coverage.2

Id. at 358-59. 

Plaintiff contends that Dairyland controls in this case because the Auto Policy

employs similar language in limiting coverage for “non-owned automobiles.” Plaintiff

reasons that the plain, ordinary meaning of a “non-owned vehicle” should apply and that the

Auto Policy’s definition of that term is improperly “sandwiched” into the policy, as was the

exclusion in Dairyland. Plaintiff moves the Court to conclude, as a matter of law, that the

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ORDER -8-

meaning of “non-owned automobile” in the Auto Policy is any automobile that the named

driver does not own or regularly use.

In response, Defendant contends that Dairyland is distinguishable because of the

differences between the policy in that case and the Auto Policy in this case. Defendant also

argues that subsequent case law limits Dairyland to narrow facts and demonstrates that the

Auto Policy is not ambiguous. Defendant correctly identifies at least two differences

between the Dairyland policy and the Auto Policy. First, the Dairyland policy was

structured to suggest that the provisions in question provided coverage. In fact, the first

paragraph of the “Use of Other Automobiles” section of the Dairyland policy provided

coverage, while the second paragraph was clearly an exclusion. The Dairyland Court found

this aspect of the policy would confuse an insured into believing that the entire “Use of

Other Automobiles” section provide coverage without exclusions. Here, the Auto Policy

provides coverage for non-owned automobiles in the “Coverage Provided” section. The

limitation, to the extent one exists, is created by the definition of “non-owned automobiles.” 

The Auto Policy does not misleadingly list a coverage exclusion under the heading of a

coverage provision, as appeared to be the case in Dairlyand. Second, and more importantly,

the limitation in this case is found in a defined term in the Auto Policy. To aid in

understandability, the Auto Policy places all defined terms in bold, including the term “nonowned automobile.” When interpreting insurance policies, Washington State courts “should

be bound by the definitions provided therein.” Overton v. Consl. Ins. Co., 145 Wn.2d 417,

427 (2002) (citing Kitsap County v. Allstate Ins. Co., 136 Wash.2d 567, 576(1998)). Unlike

the Dairyland policy, the insurer in this case took the extra step of defining the term “nonowned automobiles” in a way that narrows the definition to vehicles that are not owned or

regularly used by other persons in the driver’s household. This is a very significant

distinction. 

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3

 Although Hoverter appears to be directly on point, Plaintiff argues that it should carry

no weight because it does not discuss the Dairyland decision and it was issued by the Court of

Appeals, which has no authority to overrule the Washington State Supreme Court’s decision in

Dairyland.

ORDER -9-

In addition to relying on the obvious differences between the Dairyland and Auto

Policy provisions, Defendant also argues that his case is analogous to more recent decisions

in which courts have found such policy provisions unambiguous. In Grange Insurance

Association v. MacKenzie, the Washington State Supreme Court examined a “Use of Other

Automobiles” identical to that in Dairyland and concluded that it was not ambiguous under

separate facts. 103 Wn.2d 708, 711-13 (1985). The MacKenzie Court held that the

Dairyland decision was narrow because the ambiguity was based on the question of whether

an isolated use was a “regular use.” The MacKenzie Court found that the use in that case

was clearly “regular” and, therefore, that there was no ambiguity. Id. at 711. See also

Progressive Northwestern Ins. Co. v. Hoverter, 65 Wn. App. 872, 877-78 (1992) (holding

that a virtually identical definition of “non-owned car” is not ambiguous).3

 Here, the limited

definition of “non-owned automobile” precludes coverage as to Jennifer Kim’s use both

because the Honda was regularly used by Rita Lim and because the Honda was owned by

Kyong Kim. Both Rita and Kyong resided with Jennifer Kim. 

The Court finds Plaintiff’s contention that the “non-owned automobile” definition in

this case is void as a matter of public policy unpersuasive. There are significant differences

between the structure of the policy in Dairyland and the Auto Policy here. Moreover, the

Auto Policy uses a specifically defined term, which was not at issue in Dairyland, and

Washington State law binds courts to apply defined terms in insurance policies. Overton,

145 Wn.2d at 427. The plain language of the Auto Policy at issue in this case does not cover

Jennifer Kim’s use of the Honda on the day of the accident because the Honda was owned

by Kyong Kim and regularly used by Rita Lim, who both resided in Jennifer’s home. 

Accordingly, the Court DENIES Plaintiff’s motion for summary judgment, docket no. 18,

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ORDER -10-

and GRANTS Defendant’s motion for summary judgment, docket no. 21, on the grounds that

the Auto Policy provided no coverage for Jennifer Kim’s use of the Honda.

2. Exclusion L. in the Auto Policy

Defendant also contends that paragraph L. of the “Coverage Exclusions” section of

the Auto Policy applies to Jennifer Kim’s use of the Honda and precludes coverage. The

paragraph in question states as follows:

COVERAGE EXCLUSIONS

We do not cover:

L. a non-owned automobile while used by a relative who owns, leases or has

available for their regular use, a motor vehicle not described in the

Declarations.

Id. at 14 (bold in original, italics added). There is no dispute that, at the time of the accident,

Jennifer Kim owned a vehicle “not described in the Declarations,” which was not

functioning and had not been functioning for approximately one year. Defendant contends

that the plain language of this exclusion applies to Jennifer Kim because she owned a motor

vehicle. In opposition, Plaintiff argues that the term “owns” is ambiguous. Plaintiff

contends that an insured could reasonably believe the term “owns” does not apply to Jennifer

Kim’s situation here, where she had not driven the Mazda for approximately one year before

the accident and the Mazda was inoperable. Plaintiff also maintains that Jennifer Kim did

not actually “own” the Mazda because the secured creditor that financed her purchase of the

Mazda ultimately repossessed the Mazda after the accident. Finally, Plaintiff relies on

Farmers Ins. Co. v. USF&G Co., 13 Wn. App. 836 (1975). In Farmers, the Court of Appeals

questioned whether an “ownership, maintenance, or use” clause in an auto-insurance policy

that required the “permission of the owner” applied where the driver was unaware that he

was driving without permission. 13 Wn. App. at 837-38. The insurer argued that “owner”

meant the person who had title, not the person who had possession of the vehicle. Id. at 839. 

The Farmers Court found the term “owner” ambiguous as used in that particular policy,

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ORDER -11-

construed it against the insurer, and held that “owner” included someone in possession of the

vehicle who the driver reasonably believes to be the owner. Id. at 839. The Farmers Court

did not analyze the term “owns” in a context at all similar to the Auto Policy, and did not

hold that “owner” is universally ambiguous. The Farmers opinion is of no help in analyzing

the issue before this Court.

Under Washington State law, “[u]ndefined terms in an insurance contract must be

given their ‘plain, ordinary, and popular’ meaning.” Boeing Co. v. Aetna Cas. & Sur. Co.,

113 Wn.2d 869, 877 (1990) (citation omitted). “To determine the ordinary meaning of an

undefined term, [Washington State] courts look to standard English language dictionaries.” 

Id. The applicable definition of “own” in the standard English language dictionary is as

follows: “1. to have or hold as property or appurtenance: have a rightful title to, whether

legal or natural: possess.” Webster’s Third New International Dictionary 1612 (Unabridged

1981). Until the Mazda was repossessed after the accident, Jennifer Kim had possession and

control of the vehicle, whether she chose to repair it and drive it or not. Jennifer Kim

“owned” the Mazda. Paragraph L. is clear and unambiguous; the exclusion applies in this

case. Accordingly, the Court GRANTS summary judgment in favor of Defendant for this

reason as well.

3. Defendant’s Motion as to Plaintiff’s Negligence and Bad Faith Claims

Defendant also moves to dismiss Plaintiff’s negligence and bad faith claims on the

grounds that Plaintiff does not have standing to bring such claims. Def.’s Mot., docket no.

21, at 14-18. In his opposition brief, Plaintiff states that “[t]hose allegations are hereby

withdrawn.” Pl.’s Opp., docket no. 25, at 14. The Court considers Plaintiff’s withdrawal of

the allegations as a concession that Defendant’s motion has merit. The Court GRANTS

Defendant’s motion for summary judgment dismissal of the negligence and bad faith claims.

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ORDER -12-

CONCLUSION

The plain language of the Auto Policy does not cover Jennifer Kim’s use of the Honda

on the day of the accident because it was owned by, and regularly used by, members of

Jennifer Kim’s residence. Plaintiff’s contention that the Auto Policy language limiting

coverage under such circumstances is void as a matter of public policy is without merit. The

Court also concludes that Defendant is entitled to summary judgment under subsection L. of

the Auto Policy exclusions because Jennifer Kim owned an automobile at the time of the

accident. Finally, the Court considers Plaintiff’s withdrawal of the negligence and bad faith

allegations as a concession that Defendant’s motion has merit as to those claims. 

Accordingly, the Court GRANTS Defendant’s motion for summary judgment as to the

breach of contract, negligence, and bad faith claims, docket no. 21. The Court DENIES

Plaintiff’s motion for summary judgment, docket no. 18. 

IT IS SO ORDERED.

DATED this 8th day of September, 2006.

AThomas S. Zilly

United States District Judge

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