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IN THE COURT OF APPEAL OF THE STATE OF WASHINGTON ANTHONY VASQUEZ, individually, Appellant,

AMERICAN FIRE AND CASUALTY COMPANY, an Ohio corporation, Respondent. No. 67702-1-1 DIVISION ONE

PUBLISHED OPINION FILED: March 18,2013


### Becker, J. — Anthony Vasquez, the president ofBenchmark Construction,


### was injured when he was struck by an underinsured motoristwhile walking in a crosswalk on personal business. Vasquez made a claim for underinsured 

### motorist(UIM) coverage under the business auto policyAmerican Fire and 

### Casualty Company issued to Benchmark. He had no other auto insurance. We affirm the summaryjudgmentdismissal of his claim forUIM benefits. Vasquez
was not a named insured underthe policy and was not using a covered vehicle when he was injured. 

### Anthony Vasquez is the president, majority owner, and an employee of Benchmark Underground Construction Inc. Vasquez was hit by an underinsuredNo. 67702-1-1/2
motorist on September 15, 2008, while he was walking in a marked crosswalk on personal business. He was seriously injured. Before the accident, Vasquez had purchased a package ofcommercial 

### insurance policies for Benchmark, including a business automobile policy. Benchmark, but not Vasquez personally, was the insured entity named inthe declarations ofthe business auto policy. The policy covered seven vehicles, two of which were trailers. Among the covered vehicles listed inthe policywas a 

### 2007 Ford pickup thatVasquez bought and registered in his own name. 

### Vasquez used the pickup both for work and for his personal affairs. 

### Vasquez did not have an auto liability policy in which he was the named insured. He was specifically excluded from his wife's automobile policy. 

### According to Vasquez, this was because he rarely drove hiswife's car and he believed he had full coverage under Benchmark's business auto policy with American Fire. 

### Through Benchmark, Vasquez paid a total of $5,682 in premiums forthe business auto policy for the period of December 1, 2007, to December 1, 2008. 

### Thepolicy provided liability coverageforfive employees ofBenchmark, including Vasquez. Thepremiums paid included a chargefor "underinsured motorist 

### bodily injury" coverage at the rate of$95 each forfive ofthe seven covered vehicles, including the Ford pickup. The premium payments also included a 

### charge of $49for "non-ownership liability coverage." Vasquez soughtUIMNo. 67702-1-1/3
benefits underthe business policy. American Fire denied his claim. Vasquez sued for declaratory relief. On cross motions for summaryjudgment, the court 

### determined thatthe policy did not coverVasquez for injuries suffered as a pedestrian. Vasquez appeals. 

### Summaryjudgment is appropriate only ifthere are no genuine issues of material fact and the moving party is entitled tojudgmentas a matter oflaw. Clements v. Travelers Indem. Co.. 121 Wn.2d 243, 249, 850 P.2d 1298 (1993). 

### The interpretation of insurance policy language is a question oflaw, reviewed de
novo. Butzberqer v. Foster, 151 Wn.2d 396, 401, 89 P.3d 689 (2004). An 

### insurer issuingliability coverage "with respect to any motor vehicle registered or 

### principallygaragedinthis state" mustprovide UIM coverage "fortheprotection of persons insured thereunderwho arelegally entitled torecoverdamages." RCW 48.22.030(2). Because the UIM statute is to be liberally construed,Washington 

### courtswill void "any provision in an insurance policywhich isinconsistentwith the statute, which is not authorized by the statute, orwhich thwarts the broad 

### purpose ofthe statute." Clements, 121 Wn.2d at251. The statute is readinto and becomes part ofthe contract ofinsurance, overriding exclusionary language 

### in thepolicythatwould narrow UIM coverage below whatthe statuterequires. Clements, 121 Wn.2dat251. 

### Under the plain language ofRCW48.22.030, once it is determined that a 

### person is aninsured undertheliability section ofthepolicy, thatperson isalsoNo. 67702-1-1/4

entitled to uninsured motorist coverage. Federated Am. Ins. Co. v. Ravnes. 88 

### Wn.2d 439, 444, 563 P.2d 815 (1977). And this is true "whatever her activity may have been when she was injured by an underinsured motorist." Kowal v. Grange Ins. Ass'n. 110 Wn.2d 239, 245, 751 P.2d 306 (1988). Such coverage has been referred to as "rocking chair" coverage because the insured need not be occupying or using a particularvehicle to be eligible for it: [Ujninsured motorists coverage [is] applicable if, at the time of sustaining injury
... a named insured, was occupying the Ford described in his policy, or was on foot, or on horseback, orwhile sitting in his rocking chair on his front porch or while occupying a nonowned automobile furnished for his regular use .. . This socalled uninsured protection is limited personal accident insurance chiefly for the benefit ofthe named insured. Motorists Mut. Ins. Co. v. Bittler. 14 Ohio Misc. 23, 32-33, 235 N.E.2d 745 (1968), quoted inGrange Ins. Ass'n v. GreatAm. Ins. Co., 89 Wn.2d 710, 718, 575 P.2d 235 (1978). In Ravnes, Kowal, Grange Insurance, and Bittler, the injured person was a named insured. Vasquez contends that even though he was not named in 

### person as an insured, he was similarly entitled to unrestricted "rocking chair" coverage because the policy did provide him withliability coverage incertain situations. 

### The liability coverage section ofthe "Business Auto Coverage Form" designates Benchmark ("You") as the named insured. Itthen designates other persons as "insureds" in specified circumstances:No. 67702-1-1/5

1. Who is An Insured The following are "insureds": a. You for any covered "auto." b. Anyone else while using with your permission a covered "auto" you own, hire or borrow except: (1) The owner or anyone else from whom you hire or borrow a covered "auto". This exception does not apply ifthe covered "auto" is a "trailer" connected to a covered "auto" you own. (2) Your "employee" ifthe covered "auto" is owned by that "employee" or a member of his or her household.


### c. Anyone liable forthe conduct of an "insured" described above but only to the extent ofthat liability. An endorsementto the business auto policy, the "Master Pakfor Commercial Automobile," expands the "Who Is An Insured" section ofliability coverage to 

### add: "Any employee of yours while using a covered 'auto' you don't own, hire or borrow in your business or your personal affairs." 

### American Fire agrees that underthese provisions, Vasquez had liability 

### coverage as an employee when he was using a covered vehicle on Benchmark business. And under 1(c), he would be covered in a situation where, perhaps as 

### a construction supervisor, he became liable for the conduct ofsomeone else insured underthe policy. Inthese situations, he would belong in the statutory 

### category of "persons insured thereunder," RCW48.22.030(2), even though he
was not a named insured, and therefore he would have been entitled to UIM 

### coverage. Rau v. Liberty Mut. Ins. Co., 21 Wn. App. 326, 331, 585 P.2d 157 

### (1978) (claimant, though not the named insured, was using the insured truckwithNo. 67702-1-1/6

the owner's permission at the time ofthe accident; because this made him an 

### "insured" for liability purposes, he was also entitled to UIM coverage), abrogated inp_art on other grounds by Butzberger. 150 Wn.2d 396. Atthe time ofthe accident, Vasquez was a pedestrian in a crosswalk. He
was not using a covered auto, and he had not become liable for the conduct of anyone else insured under the policy. Accordingly, American Fire contends Vasquez was not covered for liabilityat the time ofthe accident, and as a result did not have UIMcoverage. Vasquez contends that RCW 48.22.030 does not permit insurers to deny UIM coverage on the basis ofrestrictions contained inthe liability provisions of 

### the policy. He cites Tissell Bv &Through Cavce v. Liberty Mutual Insurance Co.. 115 Wn.2d 107, 111, 795 P.2d 126 (1990). Tissell involved a personal automobile policy. The accident victim, a family member, was covered as a named insured. The court held that the statute would not permit the insurerto 

### deny UIM coverage based on a liability coverage exclusion. The victim was "the purchaser" ofthe policy and "could not have purchased UIM coverage elsewhere." Tissell, 115 Wn.2d at 111. Vasquez argues that he, as the "de 

### facto" purchaser ofthe Benchmark policy, likewise was entitled to unrestricted 

### UIM coverage. But unlike the claimant in Tissell, Vasquez was not a named insured. And what he purchased was a business policy, not a personal policy as in Tissell. Tissell does not require an insurerto treat unnamed employees of aNo. 67702-1-1/7

business as named insureds. Inessence, Vasquez proposes that an employee who is covered for 

### liability under a business policy only inlimited circumstances is entitled to UIM coverage for any injurycaused by an underinsured motorist in any circumstances. We disagree. The limiting phrases "while using" and "only to the extent ofare effective. They make Vasquez an "insured" underthe liability 

### portion of the policy only when the activity he was engaging in at the time of the 

### injury fits within those limitations. See Tedeton v. Simpson, 39,940 (La. App. 2 Cir. 8/22/01); 795 So. 2d 451, 455 (noting that liability coverage is generally extended to employees only under certain defined circumstances, and declining to "make the leap from an insured for specific circumstances to an insured in all circumstances forpurposes ofUM coverage"), writ denied. 803 So. 2d 977 (12/13/01). 

### Underinsured motorist coverage is limited personal accident insurance 

### chieflyforthe benefitofthe namedinsured. Limiting the scope ofthedefinition of who else is an "insured" does not run afoul ofthe public policy behind 

### Washington's UIM statute. Smith v. Continental Cas. Co., 128Wn.2d 73, 83, 904 P.2d 749 (1995); see ajso Blackburn v. Safeco Ins. Co., 115Wn.2d 82, 88- 89, 794P.2d 1259(1990). 

### In Smith, the UIM claimant, Roger Smith, was the sole proprietor of a 

### companythat owned atow truck. As the result of an endorsement to hisfather'sNo. 67702-1-1/8



### garage policy for an "Additional I nsured-Lessor," the tow truck was designated as
a leased auto under that policy and its lessor became an additional insured. Under a "Hired Autos" endorsement that augmented the definition of "Who is an Insured" in the same policy, the truck's owner became an insured covered for liability, but only for that truck, and only when the truck was being leased by and used for Smith's father's business. Smith. 128 Wn.2d at 76-77. At the time he
was injured, Smith had finished using the tow truck and was driving a van owned by a third party. The court's first holding was that because the van was not a covered auto, Smith did not qualify for coverage underthe UIM section ofthe policy; he was not a named insured. Smith. 128 Wn.2d at 79-80. The second holding, significantto our analysis in this case, addressed Smith's claim that he had liability coverage as an additional insured-lessor. The court held itwas not reasonable to interpret the policy as providing UIM coverage to Smith when he
was not using a covered vehicle. Smith, 128 Wn.2d at 81-82. In reading the insurance contract as a whole, itbecomes obvious itwas not intended to place upon the insurer responsibility for loss unrelated to use ofthe leased vehicle by the additional insured (Respondent), whose injury arose out of his driving a vehicle not covered by the endorsement. Smith, 128Wn.2dat83. 

### Similarlyhere, the Benchmark policywas not intended to place upon the insurer responsibility for loss unrelated to use of a covered auto. Adopting the interpretation Vasquez advocates would make the business auto policy a

8No. 67702-1-1/9
personal policy for all employees. Vasquez alternatively argues that he actually is a named insured by virtue of a Hired Autos endorsement included inthe American Fire policy. The endorsement states that any auto described inthe declarations "will be considered a covered 'auto' you own and not a covered 'auto' you hire, borrow or lease under the coverage for which it is a covered 'auto.'" Vasquez reasons as follows: (1) Inthe business auto policy, "You" refers to the named insured; (2) the endorsement converts the Ford pickup into a vehicle "You" own; (3) Vasquez 

### is the legal owner of the Fordpickup; (4) therefore, the meaning of"You" has been expanded to include Vasquez. This is an illogical interpretation of the 

### policy language. Ifforinsurance purposes a car Iown is treated as ifit belongs to you, itdoes notfollow that Iam you. 

### American Fire paidVasquez's medical expenses. The "auto medical 

### payments" form, an endorsement thatmodified the business auto coverageform and several other coverage forms, defined an insured as "You . . . while a 

### pedestrian, when struck by any 'auto.'" Vasquez contends that the payment of his medicalexpenses under this coverage supports his claim that he is a named insured "You" underthe business auto coverage. We find this argument 

### unpersuasive. As evidence of contractual intent, the payment of medical 

### expenses is too weak to support an inferencethat Vasquez was a namedinsured for liability coverage.No. 67702-1-1/10

In summary, Vasquez was not a named insured. And he was not insured under the liabilityportion ofthe policy under the circumstances ofthe accident. Therefore, he was not entitled to UIMcoverage. Affirmed. As respondent is the prevailing party, its request for costs under RAP 14.3 is granted. 

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WE CONCUR: 

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