                                                                             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 of the 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 of when 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 of statements 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 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


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No. 32109-6-111
Patriot Gen. Ins. v. Gutierrez


       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.

       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 if Jorge 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 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

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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
      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

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 of the

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 if residing in the same household. You and your also
      means any relative of that 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 of your car.
       No person shall be considered an insured person if that 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

of Washington's Consumer Protection Act, chapter 19.86 RCW.

       Patriot General filed a motion for summary judgment on the issue of whether

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

time of the 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 of the 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 of Jorge'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 of Jorge'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 of summary judgment in favor of the 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 if the relative is disclosed on the policy's application or endorsement if that

"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. If Patriot 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 if that 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 of reasonable 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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I   No. 32109-6-111
    Patriot Gen. Ins. v. Gutierrez


                                         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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