Royal Indemnity Co. v. Rolofson

Opinion

WOODS (A. M.), P. J. Robert Rolofson IV, a minor, was killed when a motorcycle on which he was a passenger collided with an uninsured vehicle. [375]His parents, appellants Robert Hayes Rolofson III and Laura Valentine, filed a wrongful death action in which they alleged, inter alia, that their damages were proximately caused by the negligent operation of the motorcycle by Jeffrey Mort, a minor.1 Jeffrey and his parents Richard and Jane Mort demanded that respondent Royal Indemnity Company defend and indemnify them pursuant to a family automobile insurance policy. Respondent Royal Indemnity Company filed this declaratory relief action in which it sought and obtained a judgment declaring, inter alia, that an automobile policy, which it issued to Jeffrey’s parents, did not cover the motorcycle.

Appellants contend the trial court erred in reaching this conclusion. Although several arguments are advanced in support of this contention,2 the issue presented in this appeal is simply whether, under the uninsured motorist provisions of the policy, the motorcycle was covered as a temporary substitute for a covered “auto.” Incorporated in this issue, and the reason for publication of this opinion, is the question, whether the term “auto” equates with and is customarily used as a substitute for the word automobile. We conclude that it is.

This issue arose because one of the vehicles insured under the policy was a 1978 Volkswagen Rabbit owned by Mr. Mort and entrusted to Jeffrey Mort. At the time of the accident the Rabbit was inoperable and out of normal use. The motorcycle which Jeffrey was operating at the time of the accident had been loaned to him by a friend. Jeffrey testified he was using the motorcycle as a temporary substitute for the Rabbit. Respondent Royal Indemnity Company took the position that the motorcycle was not an “auto” and therefore could not be covered as a temporary substitute.

The uninsured motorists clause of the policy provided in relevant part: “We will pay damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury: [fl] 1. Sustained by a covered person; and [If] 2. Caused by an accident.” “Covered person” as used in the part means: “1. You or any family member, flf] 2. Any other person occupying your covered auto. [1f] 3. Any person for damages that person is entitled to recover because of bodily injury to which this coverage applies sustained by a person described in 1.