McLaughlin v. John Doe et al

Filing 16

MINUTE ORDER denying Defendant American Family Mutual Insurance Company's 11 Motion for Summary Judgment. The subject insurance policy in this lawsuit, policy no. 2020-4857-02-64, docket no. 12 -1 (the "Carson Policy"), extends Pe rsonal Injury Protection (PIP) and Underinsured Motorist (UIM) coverage to specified categories of "insured persons." Relevant to the Motion, the Carson Policy expressly provides PIP coverage to any other person who sustains bodily injury w hile... using the insured automobile...." Carson Policy, Personal Injury Protection Coverage, at 1. Although the Carson Policy does not contain similar language extending UIM coverage to other persons "using" the insured automobile, &q uot;those words are deemed contained in the endorsement 'by force of the UIM statute and judicial construction.'" As a matter of law, Plaintiff, who is not a named insured on the Carson Policy, is therefore entitled to either PIP or UI M coverage if she was "using" the insured vehicle at the time of the accident. The Carson Policy does not define the term "using" and the Court gives the word its ordinary meaning, with guidance from the multifactor test articulat ed in Butzberger. Although Defendant is correct that the interpretation of the Carson Policy language is a question of law, summary judgment is only appropriate if there are no genuine issues of material fact. The Court concludes that genuine issues of material fact preclude summary judgment. Defendant's "Motion to Strike" contained on pages 810 of its reply brief, docket no. 14 , is DENIED as moot. Authorized by Judge Thomas S. Zilly. (TH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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KATIE MCLAUGHLIN,

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Plaintiff,
C17-974 TSZ
v.
MINUTE ORDER
JOHN DOE,

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Defendant.

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The following Minute Order is made by direction of the Court, the Honorable
13 Thomas S. Zilly, United States District Judge:
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(1)
Defendant American Family Mutual Insurance Company’s Motion for
Partial Summary, docket no. 11 (the “Motion”), is DENIED. The subject insurance
policy in this lawsuit, policy no. 2020-4857-02-64, docket no. 12-1 (the “Carson
Policy”), extends Personal Injury Protection (PIP) and Underinsured Motorist (UIM)
coverage to specified categories of “insured persons.” Relevant to the Motion, the
Carson Policy expressly provides PIP coverage to “any other person who sustains
bodily injury while . . . using the insured automobile . . . .” Carson Policy, Personal
Injury Protection Coverage, at 1. Although the Carson Policy does not contain similar
language extending UIM coverage to other persons “using” the insured automobile,
“those words are deemed contained in the endorsement ‘by force of the UIM statute and
judicial construction.’” Butzberger v. Foster, 151 Wn.2d 396, 401–02, 89 P.3d 689
(2004) (quoting Rau v. Liberty Mut. Ins. Co., 21 Wn. App. 326, 331, 585 P.2d 157
(1978)). As a matter of law, Plaintiff, who is not a named insured on the Carson Policy,
is therefore entitled to either PIP or UIM coverage if she was “using” the insured
vehicle at the time of the accident. Id. at 402; Carson Policy, Personal Injury Protection
Coverage, at 1; see also Anderson v. State Farm Mut. Auto. Ins. Co., No. C06–
1112RSM, 2007 WL 1577870, at *4 (W.D. Wash. May 30, 2007) (“Washington courts

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MINUTE ORDER - 1

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regularly apply the same analysis to both types of coverage without distinguishing
them.”). The Carson Policy does not define the term “using” and the Court gives the
word its ordinary meaning, with guidance from the multifactor test articulated in
Butzberger. 151 Wn.2d at 402–13. Although Defendant is correct that the
interpretation of the Carson Policy language is a question of law, summary judgment is
only appropriate if there are no genuine issues of material fact. Id. at 401. The Court
concludes that genuine issues of material fact preclude summary judgment.
(2)
Defendant’s “Motion to Strike” contained on pages 8–10 of its reply brief,
docket no. 14, is DENIED as moot.

(3)
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The Clerk is directed to send a copy of this Minute Order to all counsel of

Dated this 19th day of December, 2017.

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William M. McCool
Clerk

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s/Karen Dews
Deputy Clerk

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MINUTE ORDER - 2