FILED 


FEB 24, 2015 


In the Office of the Clerk of Court 


W A State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


PATRIOT GENERAL INSURANCE ) 

COMPANY, a foreign corporation, ) No. 32109-6-III 

) 

Petitioner, ) 

) 

v. ) 

) PUBLISHED OPINION 

JORGE GUTIERREZ and JANE DOE ) 

GUTIERREZ, and their marital ) 

community, and JAVIER GUTIERREZ, ) 

) 

Respondents. ) 

FEARING, J. - We granted discretionary review ofthe trial court's summary 

judgment ruling that Javier Gutierrez is an insured for purposes ofunderinsured motorist 

coverage on an automobile insurance policy purchased from Patriot General Insurance 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 
No. 32109-6-111 

Patriot Gen. Ins. v. Gutierrez 

Jorge's household over the age of 14 years. We affinn summary judgment based on 

policy language that qualifies Javier as an "insured person," despite his father's failure to 

disclose him. 

FACTS 

On August 11,2010, Jorge Gutierrez applied for car insurance from Patriot 

General Insurance Company, through 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 pennanently 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 ofwhen they 

begin driving the vehicle(s) described in this application. 

Clerks 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 ofstatements contained herein. I understand 

and agree that a routine inquiry may be made which will provide applicable 

infonnation concerning character, general reputation, personal 

characteristics, mode of living and credit history. Upon written request, 

additional infonnation as to the nature and scope ofthe 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 

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No. 32109-6-111 

Patriot Gen. Ins. v. Gutierrez 

such information is known to be false and would affect acceptance ofthe 

risk or would in any way affect the rating ofthe risk by the Company. 

CP at 84. 

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 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 ifJorge Gutierrez 

had listed his son in the application. 

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. 

The first page ofthe twelve-page Patriot General Insurance Company policy 

provides: 

In return for your premium payment and subject to the terms and 

conditions ofthis policy, we will insure you for the coverages up to the 

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No. 32109-6-111 

Patriot Gen. Ins. v. Gutierrez 

limits of liability for which a premium is shown on the Declarations Page 

ofthis 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. Ifyou 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 

relevant part, the endorsement reads: 

We will pay damages for bodily injury or property damage which 

an insured person is legally entitled to recover from the owner or operator 

of an underinsured motor vehicle. The bodily injury or property 

damage must be caused by a car accident and result from the ownership, 

maintenance or use of an underinsured motor vehicle. 

CP at 74. 

To determine who constitutes "you" and, in tum, an "insured person" under the 

underinsured motorist endorsement, the reader must first journey to the beginning ofthe 

policy and then return to the endorsement. In a policy section titled "DEFINITIONS 

USED THROUGHOUT THIS POLICY," the policy defines "you" and "your" as 

the person shown as the named insured on the Declarations Page and 

that person's spouse ifresiding in the same household. You and your also 

means any relative ofthat person if they reside in the same household, 

providing they or their spouse do not own a motor vehicle. 

CP at 58. The policy defines "relative" in the paragraph directly below: 

"Relative" means a person living in your household related to you 

by blood, marriage or adoption, including a ward or foster child. Relative 

includes a minor under your guardianship who lives in your household. 

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No. 32109-6-111 

Patriot Gen. Ins. v. Gutierrez 

Any relative who is age fourteen (14) or older must be listed on the 

application or endorsed on the policy prior to a car accident or loss. 

CP at 58 (italics added). Patriot General's policy does not explicitly state that 

undisclosed relatives are not covered. The underinsured motorist endorsement lists 

exclusions from coverage, but does not specify whether household members above the 

age of 14, and not listed on the application or policy, are excluded from coverage. 

Additional definitional language, on which we rely, is provided in the 

underinsured motorist endorsement. The language reads: 

As used in this Part: 

(1) "Insured Person" means: 

(A) You. 

(B) Any other person occupying your insured car with your 

permission. 

(C) Any person for damages that person is entitled to recover 

because of bodily injury to you or another occupant ofyour car. 

No person shall be considered an insured person ifthat person uses a motor 

vehicle without permission ofthe owner. 

CP at 74 (italics added). 

On January 9,2011, Javier Gutierrez suffered serious injuries as a passenger in a 

single-car-rollover accident. Javier was 19 at the time of the accident and living with 

Jorge. The car's driver, Matthew Vincent Lanier, was uninsured. Javier tendered an 

uninsured motorist claim under the Patriot General Insurance Company policy, which 

claim Patriot General denied on May 22, 2012. Patriot General denied coverage because 

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No. 32109-6-III 

Patriot Gen. Ins. v. Gutierrez 

Javier was over the age of 14 years, living with Jorge, and not listed on Jorge's policy; 

and therefore did not quality as "you." 

PROCEDURE 

Patriot General Insurance Company filed an action for declaratory judgment 

against Jorge and Javier Gutierrez, seeking a declaration that it had no duty to pay 

uninsured motorist benefits to Javier because he was not covered by Jorge's policy. 

Javier Gutierrez counterclaimed for coverage, breach of contract, bad faith, and violation 

ofWashington's Consumer Protection Act, chapter 19.86 RCW. 

Patriot General filed a motion for summary judgment on the issue ofwhether 

Javier Gutierrez was covered by his father's underinsured motorist (VIM) policy at the 

time ofthe accident. Javier and Jorge Gutierrez opposed the motion. The trial court 

granted the nonmoving parties Gutierrezes summary judgment because it found that the 

undisputed facts supported their position. Javier and Jorge Gutierrez were granted 

judgment "solely to the extent that the Court determines that there is VIM coverage for 

defendant Javier Gutierrez." CP at 163. The trial court determined that the definition of 

"insured" provided in Washington's casualty insurance statute should be read into the 

policy and replace the policy's definition of "insured person." The statute provides, in 

relevant part: 

(5) "Insured" means: 

(a) The named insured or a person who is a resident ofthe named 

insured's household and is either related to the named insured by blood, 

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No. 32109-6-III 

Patriot Gen. Ins. v. Gutierrez 

marriage, or adoption, or is the named insured's ward, foster child, or 

stepchild. 

RCW 48.22.005. 

LA W AND ANALYSIS 

On appeal, Patriot General Insurance Company complains that Jorge Gutierrez 

failed to list his son Javier as a member ofJorge's household above the age of 14. Patriot 

General contends this omission precludes coverage for Javier Gutierrez. Jorge and Javier 

Gutierrez argue that the Patriot General policy affords coverage, despite the omission, 

because the policy does not expressly exclude from coverage any family member above 

the age of 14 not listed in the application. According to the Gutierrezes, Jorge's failure to 

disclose Javier to Patriot only amounts to a breach of a duty to disclose and does not 

preclude coverage under the plain language ofJorge's car insurance policy. 

The Gutierrezes also contend the statutory definition of "insured," under RCW 

48.22.005, should be read into Jorge's policy in order to afford Javier uninsured motorist 

coverage. Patriot General responds that RCW 48.22.005's definition of "insured" does 

not require car insurance policies to provide uninsured motorist coverage to a named 

insured's family members. Patriot General contends RCW 48.22.005 only applies to 

personal injury protection coverage. We agree with Jorge and Javier Gutierrez that the 

language of the insurance policy, without reference to any statute, affords Javier 

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No. 32109-6-III 

Patriot Gen. Ins. v. Gutierrez 

underinsured motorist coverage. Therefore, we do not address the application of RCW 

48.22.005. 

We agree with the trial court that Jorge and Javier Gutierrez should be granted 

summary judgment. When, as here, the relevant facts are not in dispute, we may order 

entry ofsummary judgment in favor ofthe nonmoving party. Impecoven v. Dep 't of 

Revenue, 120 Wn.2d 357, 365,841 P.2d 752 (1992); Lelandv. Frogge, 71 Wn.2d 197, 

201,427 P.2d 724 (1967); Wash. Ass'n ofChild Care Agencies v. Thompson, 34 Wn. 

App. 225, 230, 660 P.2d 1124 (1983). 

Familiar principles of insurance policy construction compel our ruling that Javier 

Gutierrez is covered under the Patriot General underinsured motorist endorsement. The 

interpretation of an insurance policy is a question oflaw, and summary judgment is 

appropriate if the contract has only one reasonable meaning when viewed in the light of 

the parties' objective manifestations. Port ofSeattle v. Lexington Ins. Co., III Wn. App. 

901,907,48 P.3d 334 (2002). Insurance policies are to be construed as a whole, with 

force and effect given to each clause. Am. Star Ins. Co. v. Grice, 121 Wn.2d 869,874, 

854 P.2d 622 (1993) ...,An inclusionary clause in an insurance contract should be 

liberally construed to provide coverage whenever possible.'" Mercer Place Condo. 

Ass 'n v. State Farm Fire & Cas. Co., 104 Wn. App. 597,602, 17 P.3d 626 (2000) 

(quoting Rileyv. Viking, Ins. Co., 46 Wn. App. 828, 829,733 P.2d 556 (1987). Insurance 

limitations require clear and unequivocal language. Bordeaux, Inc. v. Am. Safety Ins. 

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No. 32109-6-111 

Patriot Gen. Ins. v. Gutierrez 

Co., 145 Wn. App. 687, 694, 186 P.3d 1188 (2008). If an insurer wants exclusions 

upheld, it has the burden of drafting them in "clear" and "unequivocal" terms. Int'l 

Marine Underwriters v. ABCD Marine, LLC, 179 Wn.2d 274, 288, 313 P.3d 395 (2013). 

Patriot General argues that in order to be an "insured person" entitled to UIM 

coverage under the car insurance policy it sold to Jorge Gutierrez, a person must meet the 

definition of "you." We agree. Patriot General further argues that a "relative" can be 

insured only ifthe relative is disclosed on the policy's application or endorsement ifthat 

"relative" is over the age of 14 and living with the named insured. We disagree. The 

policy does not expressly state that an undisclosed relative is excluded from being an 

insured. 

Patriot General argues that the sentence, "Any relative who is age fourteen (14) or 

older must be listed on the application or endorsed on the policy prior to a car accident or 

loss," should be read as defining who is insured under the policy. CP at 58. We agree 

that the sentence could be read in this light, but the Gutierrezes' contention that the 

sentence only imposes a duty to cooperate and does not act as an exclusion is equally 

plausible. 

Patriot General further argues that the relevant sentence is not an exclusion, but 

rather a permissible limitation on the definition of "insured." Patriot General does not 

explain the practical difference between a limitation on coverage and an exclusion from 

coverage. 

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No. 32109-6-111 

Patriot Gen. Ins. v. Gutierrez 

When reading the Patriot General insurance policy as a whole, we side with Javier 

and Jorge Gutierrez. The Patriot General under insured motorist endorsement lists nine 

exclusions from coverage. The list could have, but did not, exclude from coverage injury 

to a household member above the age of 14 who was not listed on the application. 

An important comparison of insurance policy language must be mentioned. In the 

underinsured motorist endorsement's additional definitions, the policy reads: "No person 

shall be considered an insured person if that person uses a motor vehicle without 

permission of the owner." CP at 74. IfPatriot General wished to limit the definition of 

"insured" to achieve the meaning it advances on appeal, it could and should have drafted 

language that reads: "No relative shall be considered an insured person ifthat person is 

age fourteen (14) or older and not listed on the application or policy endorsement." It did 

not. 

In addition, the first page of the Patriot General Insurance Company auto policy 

provides, in part: "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 (italics added). 

Significantly, the language does not read: "If you made any false statement in your 

application, this policy shall not provide any coverage." The policy does not tell the 

insured under what circumstances a false statement may lead to loss of coverage. 

Finally, Jorge Gutierrez's application read, in part: 

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No. 32109-6-III 

Patriot Gen. Ins. v. Gutierrez 

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 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 ofthe risk or would in any way affect 

the rating of the risk by the Company. 

CP at 84. 

Patriot General forwarded no evidence before the trial court that Jorge Gutierrez 

knew of any false statement. Nor did it provide evidence that Jorge's risk rating would 

change based on the fact that his two teenage children resided with him. 

In short, Patriot General controlled the language in its auto policy. The 

Gutierrezes played no role in drafting the language. If Patriot General wished to exclude 

underinsured motorist coverage to a household member, above the age of 14, who was 

not disclosed in the application for insurance, Patriot General could have expressly so 

stated in the policy. We will not assist Patriot General in rewriting the policy. 

Both Javier and Jorge Gutierrez seek recovery ofreasonable attorney fees and 

costs on appeal against Patriot General Insurance Company. We agree they are entitled 

to this recovery under Olympic Steamship Co. v. Centennial Insurance Co., 117 Wn.2d 

37,52-53,811 P.2d 673 (1991) since they were required to litigate to gain coverage 

under the Patriot General insurance policy. 

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No. 32109-6-111 

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CONCLUSION 

We affirm the trial court's declaration of coverage for Javier Gutierrez under the 

Patriot General insurance policy. We direct that this court's commissioner review Javier 

and Jorge Gutierrez's applications for fees and costs and to award a reasonable sum to 

both. We thereafter remand to the superior court for further proceedings. 

Fearing, J. . 

WE CONCUR: 


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