State Farm Mutual Automobile Insurance Company, App v. Phyllis Glover-shaw, Et Vir, Resps ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE FARM MUTUAL AUTOMOBILE,
INSURANCE COMPANY, a foreign No. 72267-1-
insurance company,
DIVISION ONE
Appellant,
v.
!N3
PHYLLIS GLOVER-SHAW and JOHN
DOE GLOVER-SHAW, wife and
husband and their marital community;
CHRISTOPHER SHAW and JANE DOE
SHAW, husband and wife and their UNPUBLISHED OPINION
marital community; SUZANNA SULJIC
and JOHN DOE SULJIC, wife and FILED: February 16, 2016
husband and their marital community;
BRITTANY R. DIXON-TAYLOR and
JOHN DOE DIXON-TAYLOR, wife and
husband and their marital community;
JASON TASTAD and JANE DOE
TASTAD, husband and wife and their
marital community; SHAWNA J.
MORGAN and JOHN DOE MORGAN,
wife and husband and their marital
community; VICKI THAYER; JASON R.
HARDER and JANE DOE HARDER,
husband and wife and their marital
community; JUSTIN G. MYSER and
JANE DOE MYSER, husband and wife
and their marital community;
AMBER J. CONNER and JOHN DOE
CONNER, wife and husband and their
marital community; LEANNE R.
CAMPBELL and JOHN DOE
No. 72267-1-1/2
CAMPBELL, wife and husband and
their marital community,
Defendants,
and
TERRY D. KENNEDY, a single man;
MATTHEW L. THAYER, and
LYNSEY M. PRICE, a single woman,
Respondents.
Becker, J. — State Farm Mutual Automobile Insurance Company sought
a judgment declaring that several collisions constituted one accident under its
insured's policy. The trial court denied State Farm's motion for summary
judgment. We conclude that there are no disputed issues of material fact and
that the collisions constituted one accident as a matter of law. We reverse and
remand for entry of judgment in favor of State Farm.
FACTS
On the night of April 1, 2011, Suzanna Suljic was driving drunk
southbound on Broadway in Everett, Washington. As Suljic approached the
intersection of Broadway and Everett Avenue, she crossed the center lane into
the northbound lanes of Broadway and hit George Maxfield's northbound car.
She then swerved into the southbound left turn lane and rear-ended Terry
Kennedy's southbound car, which was stopped at a red light waiting to make a
left turn onto Everett Avenue. The impact of the collision slammed Kennedy's car
forward into the rear end of Matthew Thayer's car. Kennedy's car rotated and hit
No. 72267-1-1/3
the front driver's side of Jason Tastad's car, which was traveling southbound on
Broadway.
Suljic continued southbound in the northbound lanes of Broadway into the
intersection of Broadway and Everett Avenue. She ran the red light and collided
head-on with Lynsey Price's northbound car at the south end of the intersection.
The impact of this collision caused Suljic's car to rotate and strike Price's car
again on the passenger side. Amber Conner, driving northbound behind Price,
then rear-ended Price's car. According to State Farm's car collision analysis
expert, all of these collisions occurred in about four to five seconds within about
160 feet.
After these collisions, the issue of liability insurance arose. Suljic was
driving a car owned by and insured to Phyllis Glover-Shaw. Glover-Shaw's son,
Christopher Shaw, had his mother's permission to use the car. Shaw, in turn,
allowed Suljic to drive the car. He was a passenger in the car during the
collisions. Glover-Shaw's car was insured by State Farm. Her insurance policy
provides liability coverage in the amount of $100,000 per accident. Her
insurance policy does not define the word accident.
State Farm filed a complaint for declaratory judgment in January 2013,
naming all involved drivers and passengers as defendants. State Farm
requested a declaration that the numerous collisions that occurred as Suljic
approached and entered the intersection of Broadway and EverettAvenue, from
Suljic's collision with Maxfield's car to the last collision between Price's and
No. 72267-1-1/4
Conner's cars, constitute one accident for the purposes of liability under Glover-
Shaw's insurance policy.
State Farm moved for summary judgment in August 2013. Price,
Kennedy, and the Thayers opposed the motion. State's Farm's motion for
summary judgment was denied in September 2013.
After summary judgment was denied, the case was assigned to a different
judge. Price filed a jury demand. State Farm asserted that there were no
contested factual issues for a jury to decide. The court ruled that a jury would
decide any factual issues and the court would decide the legal question of how
many accidents occurred for insurance policy purposes.
The defendants moved to consolidate State Farm's declaratory judgment
action with their related tort action against Suljic for the collisions. The court
denied this motion.
State Farm's declaratory action was tried before a jury in June 2014.
State Farm presented one witness, a car collision analysis expert named Tim
Moebes. He expressed his opinion that the collisions at issue took place over
about 160 feet in about four to five seconds. The defendants did not call any
witnesses. The jury also considered a book of exhibits including a police report
with a description of the collisions and witness statements. At the end of the trial,
the jury decided against State Farm by answering no to three special verdict form
No. 72267-1-1/5
questions.1
After the trial, both State Farm and the defendants moved for entry of the
findings of fact and conclusions of law. The court denied the motions in an order
entered on July 3, 2014. In the same order, the court denied State Farm's
request for a declaratory judgment that the collisions at issue constituted one
accident. But the court also declined to enter a judgment declaring that the
collisions constituted more than one accident.
State Farm moved for a new trial. At the same time, defendants asked the
court to enter a judgment based on the jury's answers to the special verdict form
questions. At a hearing on July 28, 2014, the court denied State Farm's motion
for a new trial. The court expressed willingness to enter a judgment if the parties
could present an acceptable proposed judgment, but if not, the order of July 3,
1The special verdict form questions are quoted below. State Farm's
appeal challenges these questions as being the wrong ones to ask under the
applicable case law, an issue we do not reach.
QUESTION 1: Has the plaintiff met its burden of proof that the
initial impact of the vehicle driven by Suzanna Suljic and the vehicle
driven by George Maxfield was the sole proximate cause of the
subsequent collision with the vehicle driven byTerry Kennedy?
QUESTION 2: Has the plaintiff met its burden of proof that the
initial impact of the vehicle driven by Suzanna Suljic and the vehicle
driven by George Maxfield was the sole proximate cause of the
subsequent collision between the vehicle driven by Suzanna Suljic
and the vehicle driven by Lynsey Price?
QUESTION 3: Has the plaintiff met its burden of proof that the
initial impact of the vehicle driven by Suzanna Suljic and the vehicle
driven by George Maxfield was the sole proximate cause of the
subsequent collision between the vehicle driven byAmber Conner
and the vehicle driven by Lynsey Price?
No. 72267-1-1/6
2014, would stand as the final order. None of the parties presented the court
with an acceptable proposed judgment at that time.
On July 31, 2014, State Farm filed a notice of appeal with this court. State
Farm appealed the September 2013 order denying summary judgment, the order
of July 3, 2014, and the jury's special verdict form.
This court notified the parties that the matters being appealed did not
amount to a final judgment reviewable under RAP 2.2. State Farm responded by
filing a motion in the trial court for entry of a final judgment. On December 3,
2014, the trial court entered a judgment stating that the order of July 3, 2014, and
the court's oral rulings on July 29, 2014,2 constituted the court's final
determination of the rights of the parties. Our commissioner ruled that the
requirements of RAP 2.2(a) for a nondiscretionary appeal as of right had been
satisfied. The appeal proceeds under RAP 2.2(a).
ANALYSIS
State Farm's first and dispositive argument is that the trial court erred in
denying summary judgment.
A denial of summary judgment cannot be appealed following a trial ifthe
denial was based upon a determination that material facts are disputed and must
be resolved by the fact finder. Kaplan v. Nw. Mut. Life Ins. Co., 115 Wash. App.
791, 799-800, 65 P.3d 16 (2003). review denied. 151 Wash. 2d 1037 (2004). But a
summary judgment denial is subject to review if the parties do not dispute any
2 The judgment appears to be referring to the trial court's oral rulings on
July 28, 2014.
No. 72267-1-1/7
issues of fact and the decision on summary judgment turned solely on a
substantive issue of law. Kaplan, 115 Wash. App. at 799-800.
In denying State Farm's motion for summary judgment, the trial court
stated that "material issues of fact are present." The court was not obligated to
identify the material issues of fact and did not so do. It is undisputed that the
collisions occurred within a distance of 160 feet and within four or five seconds.
At oral argument before this court, the parties agreed that the facts presented in
the summary judgment record are the same as those presented at trial. None of
the parties object to having this court review the denial of State Farm's motion for
summary judgment. Under these circumstances, we will review the order
denying summary judgment.
We review summary judgment decisions de novo, engaging in the same
inquiry as the trial court. Pemco Mut. Ins. Co. v. Utterback, 91 Wash. App. 764,
767. 960 P.2d 453 (1998). review denied, 137Wn.2d 1009(1999). A motion for
summary judgment may be granted only if there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Utterback.
91 Wash. App. at 767. We construe the facts and reasonable inferences in the light
most favorable to the nonmoving party. Utterback. 91 Wash. App. at 767.
State Farm requests a declaration that only one accident occurred for
insurance coverage purposes. All injuries or damage within the scope of a single
"proximate, uninterrupted, and continuing cause" must be treated as arising from
a single accident. Truck Ins. Exch. v. Rohde. 49 Wash. 2d 465, 471-72, 303 P.2d
659(1956).
No. 72267-1-1/8
In Rohde. the driver veered across the center line of the highway into
oncoming traffic and in quick succession hit three motorcycles traveling each
about 75 feet apart in an echelon formation. Rohde. 49 Wash. 2d at 466-67. The
driver's car went out of control either before or simultaneously with the first
collision and remained out of control until it came to rest after the third collision.
Rohde. 49 Wash. 2d at 471. There was only one proximate cause for all three
collisions—the driver's negligence in losing control of his car and veering into
oncoming traffic. Rohde. 49 Wash. 2d at 470. Because there was only one
proximate, uninterrupted, and continuing cause for all three collisions, our
Supreme Court held they constituted only one accident. Rohde. 49 Wash. 2d at
470-71.
This court held in Utterback that one accident occurred where a driver lost
control of her car while trying to park, jumped the curb, hit a man, backed up
several feet, and "'immediately'" lurched forward again and struck the man a
second time. Utterback. 91 Wash. App. at 766-67. "The interdependent nature of
the two impacts and their continuity and proximity in time and location all require
the conclusion that just one accident occurred." Utterback, 91 Wash. App. at 772.
The "only reasonable inference on these facts" is that the driver "'never regained
a full measure of control over either the car's injury-inflicting potential or the
situation in general,'" despite the fact that she reversed direction. Utterback. 91
Wash. App. at 772, quoting Welter v. Singer. 126 Wis. 2d 242, 376 N.W.2d 84, 87
(Ct. App. 1985). Because she never regained control, the only proximate and
continuing cause of both impacts was the driver's initial negligence that caused
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No. 72267-1-1/9
her to lose control of the vehicle. Utterback. 91 Wash. App. at 772. For this
reason, this court concluded that there was only one accident as a matter of law
and upheld the grant of summary judgment to the insurance company.
In contrast, a trial court improperly granted summary judgment to the
insurance company in Greenqo v. Public Employees Mutual Insurance Co., 135
Wash. 2d 799, 959 P2d 657 (1998). In Greenqo. two drivers each rear-ended the
cars in front of them, resulting in a three-car pile-up. Greengo, a passenger in
the middle car, sued her insurance company for payment under her underinsured
motorist coverage. Greengo's insurance company moved for summary judgment
to uphold the antistacking clause in the policy. The trial court granted the motion
and the Court of Appeals affirmed the denial of coverage in an analysis that
assumed there was only one accident. Greenqo. 135 Wash. 2d at 805, 812.
Our Supreme Court reversed, holding that there was a genuine issue of
material fact on the issue of how many accidents occurred. The police report
stated that both drivers were following too closely. Greenqo. 135 Wash. 2d at 815.
The court reasoned that if both drivers were following too closely, they were each
separately negligent. If so, each collision had its own proximate cause and the
two collisions would constitute two separate accidents for insurance coverage
purposes. Greengo, 135 Wash. 2d at 815.
No. 72267-1-1/10
In this case, the respondents do not argue that any driver other than Suljic
drove negligently.3 Therefore, the sole question is whether Suljic regained
control of her car at any point during these collisions. If she did, one or more of
the collisions may have a separate proximate cause and thus constitute a
separate accident for insurance coverage purposes.
It is undisputed that Suljic was driving under the influence of alcohol.
Suljic had also recently taken several prescription medications. When she was
interviewed following the collisions, Suljic told the police that the car brakes failed
and that she "just tried to get in the center lane" because she "thought it would be
safe." Suljic's passengers confirmed that she was screaming that the brakes
were not working. But a postaccident investigation found no problem with the
car's brakes.
In addition, State Farm's car collision analysis expert found it more
probable than not that the entire set of collisions occurred in four to five seconds
and in approximately 160 feet. Respondents claim that the witness statements
cast doubt on the timing and distance of the collisions but they do not
demonstrate inconsistency with the expert's findings on these issues. When the
nonmoving party fails to controvert relevant facts supporting a summary
judgment motion, the facts are considered to have been established. See Cent-
Wash. Bankv. Mendelson-Zeller. Inc.. 113Wn.2d 346, 354, 779 P.2d 697 (1989).
3 There was some discussion between the trial judge and the parties'
attorneys that Conner may have been following too closely. The respondents
assert that Conner was following too closely in the facts section of their brief to
this court. But there is no evidence in the record that Conner was in fact
following too closely, and the respondents do not present any argument to this
court that Conner was negligent.
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No. 72267-1-1/11
In Utterback. close proximity in time and distance was a relevant factor in
our conclusion that just one accident occurred. Utterback. 91 Wash. App. at 772.
The distance traveled by Suljic in these collisions is almost exactly the same
distance traveled in Rohde. where the collisions constituted one accident.
Relying on the facts and expert testimony summarized above, State Farm
presented a prima facie case that, like in Rohde and Utterback. the collisions
shared one proximate cause—Suljic's initial negligence in driving while drunk and
losing control of her car.
After the moving party submits adequate affidavits, the nonmoving party
must set forth specific facts that sufficiently rebut the moving party's contentions
and disclose that a genuine issue as to a material fact exists. Seven Gables
Corp.v.MGM/UAEntm'tCo.. 106Wn.2d 1, 13,721 P.2d 1 (1986).
Defendants below, now respondents on appeal, do not adequately
respond to State Farm's contentions with specific facts to show that Suljic
regained control of her car. Respondents rely on eyewitness descriptions that
Suljic was "weaving" through traffic, "speeding," "hitting" cars and running a red
light. They argue that the verbs used by the witnesses establish that Suljic
regained control of her car because they prove she acted volitionally. Even when
viewed in the light most favorable to the respondents, however, the witness
statements do not satisfy the test set forth in Utterback to show that the driver
regained a full measure of control over either the car's injury-inflicting potential or
the situation in general. Volitional conduct such as turning the steering wheel
and stepping on the gas pedal does not equate to regaining control ofa car that
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No. 72267-1-1/12
has veered into the lane of oncoming traffic. In Utterback. even the fact that the
driver volitionally reversed her car before she drove forward again was not
enough to show that she regained control. Utterback. 91 Wash. App. at 771. In
this case, witness statements provide even less evidence that Suljic ever
regained control because her car continued forward the entire time.
Moments before the collisions at issue in this case, Suljic hit parked cars
in the 2300 block of Broadway. She was able to regain enough control to drive
three more blocks before the collision with Maxfield's car occurred as she
approached the intersection of Broadway and Everett Avenue and crossed the
center lane. Respondents argue that it can be inferred therefrom that Suljic
remained in control as she went into the intersection. We disagree. State Farm
concedes that Suljic's collisions with the parked cars on the 2300 block of
Broadway constitute a separate accident for insurance coverage purposes. The
issue presented by State Farm's motion is whether Suljic ever regained control
from the time she hit Maxfield's car until the second time she hit Price's car. The
fact that she lost and regained control before she hit Maxfield's car is irrelevant to
the issue to be decided.
Respondents argue that State Farm did not meet its burden to present
evidence that Suljic was not in control of her car. But Suljic's blood alcohol level
was above the legal limit. She had just hit two parked cars three blocks to the
north. She then collided with three more cars as she approached and entered
the intersection of Broadway and Everett Avenue. Her driving was erratic and
dangerous, including veering into oncoming traffic. These facts supply ample
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No. 72267-1-1/13
evidence that Suljic was not in control of her car. Respondents argue that drunk
drivers can make bad decisions and still be in control of their cars. The record,
however, does not support an inference that Suljic exerted control over the
situation or the car's injury-causing potential at any time during the collisions at
issue.
The facts set forth in State Farm's motion for summary judgment establish
that Suljic's negligence in losing control of her car was the sole, uninterrupted
proximate cause of all the collisions at issue. Respondents do not rebut State
Farm's prima facie case with sufficient facts to disclose the existence of a
genuine issue of material fact. Following Utterback and Rohde, we conclude the
trial court erred in denying State Farm's motion for summary judgment. In view
of our conclusion, we need not consider State Farm's additional assignments of
error to the jury instructions and special verdict form.
Reversed and remanded for entry of judgment in favor of State Farm.
l^o^ye ^
WE CONCUR
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