### FILED FEB 24, 2015 In the Office ofthe ClerkofCourt W A StateCourtofAppeals, Division III

INTHE 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, andtheir marital ) community, andJAVIER GUTIERREZ, ) ) Respondents. ) FEARING, J.

- We granteddiscretionary review ofthe trial court's summary judgmentruling that Javier Gutierrez is an insured for purposes ofunderinsured motorist coverage onan 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 ofNo. 32109-6-111 Patriot Gen. Ins. 

### v. Gutierrez Jorge's household overthe age of 14 years. We affinn summaryjudgmentbased on policy language that qualifies Javier as an "insuredperson," 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, MariaCarmona, as authorized drivers. Jorge initialed a paragraph stating that he had listed on his application everyone living with him age 14 or older. Thatparagraph reads: I also certify that all persons age 14 or over who live with me temporarily orpennanently 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 ofthe vehicle(s) described in this application unless their names and ages are shown above or are provided in writing tothe Company within 14 days ofwhen they begin driving the vehicle(s) described inthis application. Clerks Papers (CP) at 84. Thepolicy application further states: I hereby apply to the Company for a policy ofinsurance as set forth in this application onthe 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 ofliving and credithistory. Upon written request, additional infonnation as to the nature and scope ofthe report, ifone is made, 

### will be provided. I understand and agree that such policy shall be cancelled andthe benefits available under such policy may be denied if

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such information is known to be false and would affect acceptance ofthe risk orwould in any way affectthe rating ofthe risk by the Company. CP at 84. Atthe time ofcompleting 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 summaryjudgmentmotion, 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 himto certify thathis childrenwould not be using the vehicles. Jorge Gutierrez recalls telling Tomas Miranda thathis son, Javier, and his daughter, Viviana, would also be drivers. Neitherparty provided informationto the trial court as to whether Patriot General would have charged a higherpremium for the insurance policy ifJorge Gutierrez had listed his son in the application. Patriot General issued an autopolicy to Jorge Gutierrez with a coverageperiod running from October 29,2010to 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: Inreturn for 

### yourpremiumpayment and subjectto the terms and conditions ofthis policy, 

### we will insure you for the coverages up to the 3No. 32109-6-111 Patriot Gen. Ins. 

### v. Gutierrez

limits ofliability 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 whichyou made in your application for insurance. Ifyou have made any false statementin your application, this policy may not provide any coverage. CP at 

### 57. Thepolicy includes a separate three-page amended "UnderinsuredMotorists Coverage Endorsement," which covers injuries causedby an underinsured motorist. In relevantpart, the endorsementreads: Wewill pay damages for bodily injury or property damagewhich an insured person is legally entitledto recover from the owner oroperator ofan underinsured motorvehicle. The bodily injury orproperty damage must be causedby a car accident andresult from the ownership, maintenance oruse ofan underinsured motorvehicle. CP at 74. To determine who constitutes "you" and, in tum, an "insuredperson" under the underinsured motorist endorsement, thereadermust firstjourneyto the beginning ofthe policy and then return to the endorsement. In a policy section titled "DEFINITIONS USED THROUGHOUTTHIS POLICY," the policy defines "you" and "your" as the person shown as the named insured on the Declarations Page and thatperson's spouse ifresiding in the same household. You and your also means any relative ofthatperson ifthey reside in the same household, providingthey ortheir spouse do not own a motorvehicle. CP at 58. Thepolicy defines "relative" in the paragraph directly below: "Relative" means a person living in yourhousehold related to you by blood, marriage or adoption, including a ward or foster child. Relative includes a minor underyour guardianship who lives in yourhousehold. 4No. 32109-6-111 Patriot Gen. Ins. v. Gutierrez Anyrelative who is agefourteen (14) or older must be listedon the application or endorsedon thepolicyprior to a car accident or loss. CP at 58 (italics added). Patriot General's policy does not explicitly state that undisclosedrelatives 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 orpolicy, are excluded from coverage. Additional definitional language, onwhich 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 otherperson occupyingyour insured carwith your permission. (C) Any person for damages that person is entitled to recover because ofbodily injuryto you oranother occupant ofyourcar. Noperson shallbe consideredan insured person 

### if thatperson uses a motor vehicle withoutpermission of the 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 atthe time ofthe accident and living with Jorge. The car's driver, Matthew Vincent Lanier, was uninsured. Javiertendered an uninsured motorist claim underthe Patriot General Insurance Company policy, which claim Patriot General denied onMay 22, 2012. Patriot General denied coverage because



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Javierwas overthe age of 14 years, living withJorge, and not listed on Jorge's policy; and therefore did not quality as "you." PROCEDURE Patriot General Insurance Company filed an action for declaratoryjudgment against Jorge and Javier Gutierrez, seeking a declaration that it had no duty to pay uninsured motorist benefits to Javierbecause he was not covered by Jorge's policy. Javier Gutierrez counterclaimed for coverage, breach ofcontract, bad faith, and violation ofWashington's ConsumerProtection Act, chapter 19.86 RCW. Patriot General filed a motion for summaryjudgment onthe issue ofwhether Javier Gutierrez was coveredby his father's underinsured motorist (VIM) policy atthe time ofthe accident. Javier and Jorge Gutierrez opposed the motion. The trial court granted the nonmoving parties Gutierrezes summaryjudgmentbecause it found thatthe undisputed facts supported theirposition. 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 thatthe definition of "insured"provided in Washington's casualty insurance statute shouldbe read into the policy and replace the policy's definition of"insuredperson." The statute provides, in relevantpart: (5) "Insured" means: (a) The named insured or a person who is a resident ofthe named insured's household and is eitherrelatedto the named insured by blood, 6No. 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. LAW 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 omissionprecludes coverage for Javier Gutierrez. Jorge and Javier Gutierrez argue thatthe 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 Javierto Patriot only amounts to a breach ofa duty to disclose and does not preclude coverage underthe plain language ofJorge's car insurance policy. The Gutierrezes also contend the statutory definition of"insured," underRCW 48.22.005, should be read into Jorge'spolicy in orderto afford Javier uninsured motorist coverage. Patriot General responds that RCW 48.22.005's definition of"insured" does notrequire 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 Gutierrezthat the language ofthe insurance policy, without reference to any statute, affords Javier

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underinsured motorist coverage. Therefore, we do not address the application ofRCW 48.22.005. We agree with the trial court thatJorge and Javier Gutierrez should be granted summaryjudgment. When, as here, the relevant facts are not in dispute, we may order entry ofsummaryjudgment 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'nof Child Care Agencies v. Thompson, 34 Wn. App. 225, 230, 660 P.2d 1124 (1983). Familiarprinciples ofinsurance policy construction compel ourruling that Javier Gutierrez is covered under the Patriot General underinsured motorist endorsement. The interpretation ofan insurance policy is a question oflaw, and summaryjudgmentis appropriate ifthe contract has only one reasonable meaning when viewed in the light of the parties' objective manifestations. Port of Seattle v. LexingtonIns. 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. StarIns. 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 wheneverpossible.'" 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. SafetyIns. 

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### Co., 145 Wn. App. 687, 694, 186 P.3d 1188 (2008). Ifan insurer wants exclusions upheld, it has the burden ofdrafting them in "clear" and "unequivocal" terms. Int'l Marine Underwriters v. ABCDMarine, LLC, 179 Wn.2d 274, 288, 313 P.3d 395 (2013). Patriot General argues that in order to be an "insuredperson" entitled to UIM coverage under the car insurance policy it sold to Jorge Gutierrez, a person must meetthe 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, "Anyrelative who is age fourteen (14) or older must be listed onthe application or endorsed on the policy priorto a car accident or loss," should be read as defining who is insured under the policy. CP at 58. We agree thatthe sentence could be read in this light, butthe Gutierrezes' contentionthatthe sentence only imposes a duty to cooperate and does not act as an exclusion is equally plausible. Patriot General further argues thatthe relevant sentence is not an exclusion, but rather a permissible limitation onthe definition of"insured." Patriot General does not explain the practical difference between a limitation on coverage and an exclusion from coverage. 9No. 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 underinsured 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 onthe application. An important comparison ofinsurance policy language mustbe mentioned. In the underinsured motorist endorsement's additional definitions, the policy reads: "Noperson shall be considered an insured person ifthat person uses a motor vehicle without permission ofthe owner." CP at 74. IfPatriot General wished to limitthe definition of "insured" to achieve the meaning it advances on appeal, it could and shouldhave drafted language that reads: "No relative shall be considered an insured person ifthatperson is age fourteen (14) or older and not listed onthe application orpolicy endorsement." 

### It did not. In addition, the first page ofthe Patriot General Insurance Company auto policy provides, in part: "Thispolicy is issued by us in reliance upon the statements whichyou made in your application for insurance. Ifyou have made any false statement in your application, this policy maynotprovide any coverage." CP at 57 (italics added). Significantly, the language does notread: "Ifyou made any false statement in your application, this policy shallnot provide any coverage." The policy does nottell the insured under what circumstances a false statement may lead to loss ofcoverage. Finally, Jorge Gutierrez's application read, in part: 10No. 32109-6-III Patriot Gen. Ins. v. Gutierrez

I hereby apply to the Company for a policy ofinsurance as set forth in this application on the basis ofstatements contained herein.

. .. I understand and agree that such policy shall be cancelled and the benefits available under such policy may be denied ifsuch information is known to be false and would affect acceptance ofthe risk orwould in any way affect the rating ofthe risk by the Company. CP at 84. Patriot General forwarded no evidence before the trial courtthat Jorge Gutierrez knew ofany false statement. Nor did itprovide evidence that Jorge's risk rating would change based on the fact thathis 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. IfPatriot 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 assistPatriot 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 tothis recovery under Olympic Steamship Co. v. CentennialInsurance Co., 117 Wn.2d 37,52-53,811 P.2d 673 (1991) since they were required to litigate to gain coverage underthe Patriot General insurance policy.

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# I I No. 32109-6-111 Patriot Gen. Ins. 

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CONCLUSION We affirm the trial court's declaration ofcoverage for Javier Gutierrez underthe Patriot General insurance policy. We directthat this court's commissionerreview 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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