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

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE FARM MUTUAL AUTOMOBILE, INSURANCE COMPANY, a foreign No. 72267-1insurance 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wife and husband and their marital community; CHRISTOPHER SHAW and JANE DOE SHAW, husband and wife and their UNPUBLISHED OPINION marital community; SUZANNA SULJIC and JOHN DOE SULJIC, wife and FILED: February 16, 2016 husband and their marital community; BRITTANY R. DIXON-TAYLOR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 Wn. App.

791, 799-800, 65 P.3d 16 (2003). review denied. 151 Wn.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 Wn. 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 Wn. 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 Wn. App. at 767. We construe the facts and reasonable inferences in the light

most favorable to the nonmoving party. Utterback. 91 Wn. 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 Wn.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 Wn.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 Wn.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 Wn.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 Wn.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 Wn. 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 Wn. 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 Wn. 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

8 No. 72267-1-1/9

her to lose control of the vehicle. Utterback. 91 Wn. 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

Wn.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 Wn.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 Wn.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 Wn.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. 10 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 Wn. 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

11 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 Wn. 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

12 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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