                                                                                                       FILED
                                                                                               COURT
                                                                                                        OF APPEALS
                                                                                                     EIVISION    11
                                                                                              20 i 4 JUL 22
                                                                                                            A    jQ. 25
      IN THE COURT OF APPEALS OF THE STATE OF WASHIIC $
                                                                                                                WF    TON
                                                DIVISION II                                   BY \
                                                                                                     OE FM17\
STATE FARM INSURANCE COMPANY,                                             No. 45003 -8 - II


                                      Respondent,                  UNPUBLISHED OPINION
                                                                                                         3
         v.



BRENT and VERA ROLLINS, husband and
wife,



                                      Appellants.


         BJORGEN, A.C. J. —          Brent and Vera Rollins appeal a trial court order granting summary

judgment in favor of State Farm Insurance Company based on the conclusion that, under the

insurance policy' s regular use exclusion, the Rollins' personal injury protection (PIP) coverage
                             Veral

did   not cover   injuries           sustained while riding as a passenger in her vanpool van. Brent and

Vera assert that the trial court erred in granting summary judgment in favor of State Farm

because the regular use exclusion violates public policy where used to deny PIP coverage to a

participant in a ride -sharing arrangement. Because the regular use exclusion does not violate

public policy and because the exclusion applied such that State Farm properly denied PIP

coverage for injuries Vera sustained while riding in her vanpool van, we affirm the trial court' s

summary judgment order in favor of State Farm.

                                                     FACTS


         On January 19, 2012, Vera was commuting to work as a passenger in a Metro Vanpool

van that was involved in an accident. Vera had commuted as a passenger in the Metro Vanpool

program five days each week in the three years prior to her accident, primarily in four particular



1 We refer to Brent and Vera Rollins by their first name for the sake of clarity. We intend no
disrespect.
No. 45003 -8 - II



Metro Vanpool vans. Vera sustained injuries in the accident, and she filed a claim for PIP


benefits under Brent' s insurance policy with State Farm. State Farm denied Vera' s claim under

the policy' s regular use exclusion, which exclusion states:

        THERE IS NO COVERAGE FOR AN INSURED:


        3.   WHO IS OCCUPYING A MOTOR VEHICLE:
                a. OWNED BY YOU; OR
                b. FURNISHED FOR YOUR REGULAR USE IF IT IS NOT YOUR CAR
                OR A NEWLYACQUIRED CAR.


Clerk' s Papers ( CP) at 2, 5, 87.


        On June 12, 2012, State Farm filed a complaint for declaratory judgment, requesting that

the trial court rule Vera was not entitled to PIP benefits because the regular use exclusion applied


to her use of the Metro Vanpool van. State Farm later sought the same relief in a February 20,

2013 summary judgment motion. Brent and Vera filed a cross -motion for summary judgment,

asserting that the regular use exclusion was contrary to public policy as applied to the denial of

Vera' s PIP coverage. Following a hearing on the parties' motions, the trial court granted State

Farm' s motion for summary judgment and denied the Rollins' cross -motion for summary

judgment. Brent and Vera timely appeal. the trial court' s summary judgment order.

                                            ANALYSIS


        Brent and Vera contend that State Farm' s regular use exclusion cannot be used to deny

PIP coverage for injuries Vera sustained while riding as a passenger in her vanpool van because

applying the exclusion in her case contravenes public policy considerations in favor of ride -

sharing arrangements. We disagree and affirm the trial court' s order granting summary

judgment in favor of State Farm.




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No. 45003 -8 -II



                                               I. STANDARD OF REVIEW


          When reviewing a trial court' s summary judgment order, we engage in the same inquiry

as   the trial   court.   Quadrant   Corp.    v.   Am. States Ins. Co., 154 Wn.2d 165, 171, 110 P. 3d 733


 2005).     Summary judgment is appropriate only if the pleadings, affidavits, depositions, and

admissions on file demonstrate the absence of any genuine issues of material fact and that the

moving party is       entitled   to judgment       as a matter of   law. CR 56( c).   In determining whether

summary judgment is proper, we consider all facts submitted and all reasonable inferences from

those facts in a light most favorable to the nonmoving party, here Brent and Vera. Progressive

Nw. Ins. Co. v. Hoverter, 65 Wn. App. 872, 876, 829 P. 2d 783 ( 1992).

          Interpretation of an insurance policy is a question of law that we review de novo.

Quadrant, 154 Wn.2d at 171.            We apply contract principles to our interpretation of insurance.

policies.    Quadrant, 154 Wn.2d         at   171.    We must consider the insurance policy as a whole and

give it a " fair, reasonable, and sensible construction as would be given to the contract by the

average person        purchasing insurance."          Quadrant, 154 Wn.2d at 171 ( internal quotation marks


omitted).        If the language of the insurance policy is clear and unambiguous, we must enforce it as

written and not create       ambiguity   where none exists.           Quadrant, 154 Wn.2d    at   171.   We will


enforce insurance policy exclusions unless such exclusions are against public policy. Hoverter,

65 Wn. App. at 876.

                                              II. REGULAR USE EXCLUSION


           A regular use provision, such as the one in Brent' s policy, is designed " to provide

coverage for isolated use [ of a vehicle] without the payment of an additional premium, but to

disallow the interchangeable          use of other [ vehicles] which are not covered         by   the policy."
No. 45003 -8 -II


Grange Ins. Ass 'n         v.   MacKenzie, 103 Wn.2d 708, 712, 694         P. 2d 1087 ( 1985). More specifically,

 the purpose of the regular use clause is to ( 1) prevent an insured from receiving the benefits of

coverage by purchasing only one policy and ( 2) provide coverage to an insured when the insured

is   engaged   in the     casual or   infrequent    use of a nonowned vehicle."    Nelson v. Mut. ofEnumclaw,

128 Wn.      App.    72, 76, 115 P. 3d 332 ( 2005) (       citing Dairyland Ins. Co. v. Ward, 83 Wn.2d 353,

359, 517 P. 2d 966 ( 1974)).

            In determining whether an insurance policy' s regular use provision applies so as to

exclude coverage:




              I] t is the fact of regular use and not the purpose of that use that is the relevant
            issue. An insurance company's legitimate interest is in preventing an increase in
            the quantum of risk without a corresponding increase in the premium; the risk to
            the insurance company is related only to the amount of time the car is driven, not
            to the reason that car is driven."


Ross   v.   State Farm Mut. Auto. Ins. Co., 132 Wn. 2d 507, 520, 940 P. 2d 252 ( 1997) ( quoting


Grange Ins., 103 Wn.2d at 712).


            Here, Brent and Vera acknowledge that our Supreme Court has held regular use


exclusions to be clear and unambiguous. Additionally, Brent and Vera " admit that the PIP

provisions of the State Farm policy excludes coverage of a motor vehicle furnished for an

insured'     s regular use,"       and they do not contend that Vera' s participation in her vanpool five days

a week falls outside the scope of "regular use" as the term is used in the policy' s exclusion

provision.      CP   at   5;    see also   Grange Ins., 103 Wn.2d at 712 ( use of relative' s vehicle at least 4 to


6 times per month constituted " regular use" under provision excluding insurance coverage);

Nelson, 128 Wn. App. at 77 ( use of mail carrier vehicle 16 times in four -
                                                                          month period

constituted " regular use ").          Instead, Brent and Vera claim that the regular use exclusion is



                                                               4
No. 45003 -8 -II



unenforceable because it contravenes public policy in favor of ride sharing. Accordingly, that is

the sole issue we must decide in this appeal.


                                                    III. PUBLIC POLICY


           Washington courts rarely invoke public policy to override express terms of an insurance

policy."    Boeing Co.    v.   Aetna Cas. & Sur. Co., 113 Wn.2d 869, 876 n. 1, 784 P. 2d 507 ( 1990)


 citing State Farm Gen. Ins. Co. v. Emerson, 102 Wn.2d 477, 481 -83, 687 P. 2d 1139 ( 1984);

Progressive Cas. Ins. Co.        v.   Cameron, 45 Wn.      App.    272, 282, 724 P. 2d 1096 ( 1986)).   Even


where    the   wisdom of certain      insurance     exclusions   may be reasonably   questioned, "   we have been


hesitant to invoke public policy to limit or avoid express contract terms absent legislative

action."    Emerson, 102 Wn.2d          at   481.   Generally, insurance contract provisions do not violate

public   policy   unless such provisions are "'        prohibited by statute, condemned by judicial decision,

or   contrary to the   public morals. "'       Emerson, 102 Wn.2d at 481 ( quoting 17 C. J. S. Contracts §

211, at 1024 ( 1963)).


A.         Increased Risk to Insurer


           In support of their claim that the regular use provision violates public policy, Brent and

Vera first argue that ( 1) an insurance exclusion is unenforceable when the condition triggering

such exclusion presents no increased risk to the insurer, and that (2) providing PIP coverage to a

participant in a ride -sharing arrangement presents no increased risk to an insurer. On both

points, we disagree.


           Brent and Vera cite Mutual ofEnumclaw Ins. Co. v. Wiscomb, 97 Wn.2d 203, 643 P. 2d

441 ( 1982), for the proposition that activities excluded from coverage must constitute an


increased risk to the insurer in order to be enforceable in Washington. In Wiscomb, the issue



                                                             5
No. 45003 -8 -II



before the court was " to determine the validity and effect of family or household exclusion

clauses   in   automobile          insurance       policies."    97 Wn.2d   at   205. The exclusion provision at issue


prevented " those persons related to and living with the negligent driver, from receiving financial

protection under [ the]            insurance policy."           Wiscomb, 97 Wn.2d at 208. In holding that the family

or household exclusion provision was void as against public policy because it excluded a certain

class of victims from coverage for the insured' s negligent driving, the Wiscomb court relied on

the public policy " in favor of assuring monetary protection and compensation to those persons

who suffer injuries through the negligent use of public highways by others" as expressed in the

Financial Responsibility Act, chapter 46. 29 RCW, and the public policy of "assuring protection

to the innocent victims of automobile accidents" as recognized in prior case law. 97 Wn.2d at

206 -07 -09 ( citing Touchette               v.   Nw. Mut. Ins. Co., 80 Wn.2d 327, 332, 494 P. 2d 479 ( 1972)).


          Contrary to Brent and Vera' s argument, Wiscomb does not hold that an insurance

exclusion is void when the condition triggering the exclusion presents no increased risk to the

insurer. Rather, the Wiscomb court relied on the public policy against excluding coverage to a

certain class of victims when it invalidated the exclusion at issue in that case. Although the


Wiscomb        court noted         that "[   a] n insurer is free to limit its risks by excluding coverage when the

nature of      its   risk   is   altered   by   factors   not contemplated   by    it in computing   premiums,"   it did not


thereby establish a public policy against exclusion provisions presenting no increased risk to the

insurer. 97 Wn.2d at 209.


          Even accepting for the sake of argument that insurance exclusion provisions violate

public policy when the condition triggering the exclusion presents no increased risk to the

insurer, here Vera' s "            regular use"      of a vanpool    five days    each week   clearly increased State
No. 45003 -8 -II



Farm' s exposure to liability absent contemplation of that risk in setting Brent and Vera' s

insurance premiums. Accordingly, on this ground Brent and Vera fail to demonstrate that the

exclusion provision is void as against public policy.

B.     Consumer Expectations


       Next, Brent and Vera argue that the " regular use" provision is unenforceable to exclude


Vera' s PIP coverage because providing PIP coverage to passengers in a ride -sharing arrangement

is consistent with consumer expectations. Again, we disagree. In support of their argument,

Brent and Vera present " common situations in which a reasonable consumer" would expect


coverage but would be denied under State Farm' s interpretation of the regular use exclusion,


such as car pooling to work, ride sharing to school, or commuting with a friend to church. Br. of

Appellant   at   6 -7.   This argument ignores, however, case law holding that clear and unambiguous

insurance provisions must be enforced as written, Quadrant, 154 Wn.2d at 171, and that regular


use exclusions, such as the one at issue here, are clear and unambiguous. See, e.g., Nelson, 128

Wn. App. at 76. Additionally, Brent and Vera' s argument fails because it is the frequency of

use, and not the purpose of the use, that is a relevant factor in determining whether a regular use

provision applies so as to preclude coverage. Ross, 132 Wn.2d at 520.


C.      RCW 47. 04. 280


        Finally, Brent and Vera point to RCW 47.04.280 as the source for a public policy against

excluding PIP coverage for participants in ride -sharing arrangements. Once again, we disagree.

RCW 47.04. 280 does not establish any public policy implicating the conduct of insurers and,

instead, merely establishes the legislature' s intent to promote certain transportation policy goals

through the      use of "[p] ublic   investments in transportation." ( Emphasis added.)




                                                        7
No. 45003 -8 -II



       Here, State Farm' s regular use exclusion comports with RCW 48. 22. 090, which statute


provides in relevant part:


       An insurer is not required to provide personal injury protection coverage to or on
       behalf of:


         5) The named insured or a relative while occupying a motor vehicle owned by
       the named insured or furnished for the named insured' s regular use, if such motor
       vehicle is not described on the declaration page of the policy under which a claim
        is made;
         6) A relative while occupying a motor vehicle owned by the relative or furnished
        for the relative' s regular use, if such motor vehicle is not described on the
        declaration page of the policy under which a claim is made.

        In Brown v. United Pacific Insurance Co., 42 Wn. App. 503, 506, 711 P. 2d 1105 ( 1986),

Division One of our court held that a regular use provision that excluded underinsured motorist


 UIM) coverage did not violate public policy where the provision tracked the language of the

UIM statute, RCW 48. 22.030. In so holding, the Brown court reasoned:

        The sole issue here is whether the Browns are entitled to underinsured motorist
         coverage under David Brown' s policy with United Pacific, despite an exclusion
         for injuries incurred "[ w]hile operating, or occupying any motor vehicle owned by
         or available for the regular use of you or any family member which is not inusred
         for Liability coverage under this policy."

                   Since the exclusion is not ambiguous, it must be enforced unless against
         public   policy. Progressive      v.   Jester, 102 Wn.2d 78, 80, 683 P. 2d 180 ( 1984).   As

         the clause tracks the language of RCW 48. 22. 030, it can only be against public
         policy if the statute is as well.

42 Wn.   App.     at   504, 506 ( internal footnote   omitted).   As in Brown, here the challenged insurance


exclusion tracks statutory language providing that insurers are not required to provide coverage

where the insured or insured' s relative suffers an injury while occupying a vehicle furnished for

the insured' s or insured' s relative' s regular use. Accordingly, we hold that State Farm' s regular




                                                           8
No. 45003 -8 - II



use exclusion is not contrary to public policy and, thus, affirm the trial court' s order granting

summary judgment in favor of State Farm.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW


2. 06. 040, it is so ordered.




We   concur:
