                                                                       FILED
                                                                     JUNE 6, 2017
                                                             In the Office of the Clerk of Court
                                                           WA State Court of Appeals, Division III




                IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                   DIVISION THREE

     KELLY RAMM and LISA RAMM,                   )         No. 34542-4-111
     husband and wife,                           )
                                                 )
                         Appellants,             )
                                                 )
           V.                                    )         UNPUBLISHED OPINION
                                                 )
     FARMERS INSURANCE COMPANY                   )
     OF WASHINGTON,                              )
                                                 )
                         Respondent.             )

           PENNELL, J. - Kelly and Lisa Ramm sued Farmers Insurance Company of

     Washington after it denied coverage for personal injury protection (PIP) benefits. The

     trial court granted summary judgment in favor of Farmers. We affirm.




!;
l
No. 34542-4-III
Ramm v. Farmers Ins. Co. of Wash.


                                         FACTS

       Kelly Ramm was driving with his son on Trent Avenue in Spokane when he began

to feel nauseous. Believing he was going to be sick, Mr. Ramm turned his vehicle from

Trent to a side street and then pulled over toward the side of the road. The vehicle was

placed in park but the keys remained in the ignition with the engine running. Mr. Ramm

then unbuckled his seatbelt and leaned out the driver's door to vomit onto the road. But

he passed out and fell forward onto the pavement, striking his head and suffering

significant injuries. After falling and while still unconscious, Mr. Ramm began bleeding

profusely. His head and upper body fell outside the vehicle but his legs and feet remained

inside near the pedals for the accelerator and brakes. Mr. Ramm's son provided some

basic first aid and drove his father to the emergency room.

      The Ramms accumulated medical bills in excess of $10,000 for treatment of Mr.

Ramm's injuries. Mr. Ramm submitted a PIP claim under his personal automobile policy

with Farmers. The insurance policy agreement affords that Farmers "will provide the

benefits described [in the policy] for bodily injury to each Insured person caused by a

motor vehicle accident." Clerk's Papers (CP) at 87 (emphasis in original).

       Farmers responded to Mr. Ramm's PIP claim by denying coverage for the incident.

Farmers based the decision on its interpretation of Tyrrell v. Farmers Insurance Co. of



                                             2
No. 34542-4-111
Ramm v. Farmers Ins. Co. of Wash.


Washington, 140 Wash. 2d 129, 994 P.2d 833 (2000). It took the position that, under

Tyrrell, a motor vehicle accident only occurs "when the covered motor vehicle is being

operated as a motor vehicle" and "a motor vehicle is not being operated as a motor

vehicle when parked." william97@example.org. Farmers reasoned that since Mr. Ramm sustained his

injuries by falling from a parked vehicle, the events leading to those injuries could not be

considered a motor vehicle accident and he was not entitled to PIP coverage. Mr. Ramm

replied to Farmers' coverage denial through his attorney. In response, relying on PEMCO

Insurance Co. v. Sch/ea, 63 Wn. App. 107,817 P.2d 878 (1991), Farmers further

contended that Mr. Ramm "was not engaged in a transaction essential to the use of the

vehicle at the time of the loss nor was there a causal connection between the injury and

the use of the insured vehicle." william97@example.org. Farmers reiterated its denial of PIP coverage.

       The Ramms filed suit against Farmers alleging breach of contract for failure to pay

PIP benefits as well as several other claims that are not relevant to this appeal. They

moved for partial summary judgment on the breach of contract claim. Farmers filed a

cross motion for summary judgment, but the parties later stipulated that the trial judge

would consider summary judgment only on the breach of contract claim. Consideration

of the other claims in the Ramms' lawsuit was reserved for a later date. After a hearing,

the trial judge granted Farmers' cross motion, denied the Ramms' motion, and dismissed


                                             3
No. 34542-4-III
Ramm v. Farmers Ins. Co. of Wash.


the breach of contract claim. The parties stipulated to an agreed order of dismissal on the

other claims in the suit to allow for an immediate appeal of the ruling on the breach of

contract claim. The Ramms appeal.

                                        ANALYSIS

       This court reviews an order granting summary judgment de novo. Lyons v. US.

Bank Nat'/ Ass 'n, 181 Wn.2d 775,783,336 P.3d 1142 (2014). In an automobile

insurance case where facts are not in dispute, "coverage depends solely on the language

of the insurance policy," and the interpretation of that language is a question of law

reviewed de novo. Roller v. Stonewall Ins. Co., 115 Wash. 2d 679, 682, 801 P.2d 207

(1990), overruled on other grounds by Butzberger v. Foster, 151 Wash. 2d 396, 89 P.3d 689

(2004). "In construing the language of an insurance policy, the policy should be given a

fair, reasonable, and sensible construction as would be given to the contract by the

average person purchasing insurance." Roller, 115 Wash. william97@example.org.

      At issue here is whether Mr. Ramm's injuries were caused by a "motor vehicle

accident," as contemplated by the insurance policy. We have held the term motor vehicle

accident unambiguously refers to an incident where one or more vehicles come in

"' forceful contact with another vehicle or a person, causing physical injury."' Farmers




                                             4
No. 34542-4-III
Ramm v. Farmers Ins. Co. of Wash.


Ins. Co. of Wash. v. Grelis, 43 Wn. App. 475,478, 718 P.2d 812 (1986) (quoting

Manhattan & Bronx Surface Transit Operating Auth. v. Gholson, 98 Misc. 2d 657,414

N.Y.S.2d 489,490, aff'd, 71 A.D.2d 1004, 420 N.Y.S.2d 298 (1979)). In Tyrrell, the

Washington Supreme Court found this understanding of what constitutes a motor vehicle

accident "compelling." Tyrrell, 140 Wash. william97@example.org. The court further explained that a

motor vehicle accident occurs when a motor vehicle is being operated as a motor vehicle.

Id. As explained by the court:

       A motor vehicle is being operated as a motor vehicle when it is being driven
       or when it is stopped while being driven. For example, if a tree limb were
       to fall on the motor vehicle while a person was driving or had stopped while
       driving, that would constitute a 'motor vehicle accident.' On the other
       hand, a motor vehicle is not being operated as a motor vehicle when parked.

Id. at 137.

       The applicable legal standards support the denial of insurance coverage by

Farmers. Under Grelis, the analysis is straightforward. Mr. Ramm's injuries were not

caused by forceful contact with a vehicle. The forceful contact was with the pavement.

A reasonable construction of the term "motor vehicle accident" simply does not

encompass this unfortunate incident.




                                            5
No. 34542-4-III
Ramm v. Farmers Ins. Co. of Wash.


       Recognizing the lack of support under Grelis, the Ramms argue the standard

articulated in Tyrell is broader than Grelis. That may be true in an unusual case. 1 But it

is not true here. Tyrell is unhelpful to the Ramms because Mr. Ramm was not operating

his vehicle at the time of the incident. Contrary to the Ramms' assertions, Mr. Ramm had

not merely stopped his vehicle while driving. Stopping while driving occurs, for

example, when a vehicle stops at a traffic light. In this circumstance, the driver must

continuously step on the brake pedal, or take similar action, to keep the vehicle under

control. Such active involvement constitutes operation as contemplated by Tyrell. No

similar conduct occurred here. Mr. Ramm's car was not stopped at a traffic signal. He

was not taking any action to ensure the car remained motionless. Instead, Mr. Ramm's

vehicle was pulled to a side road and the transmission was placed in park. It is irrelevant

that Mr. Ramm did not intend to have his vehicle remain in park for very long. That is

not the test. The test is what was happening at the moment of the incident. Because Mr.

Ramm was in no sense operating his vehicle at the time the injuries were sustained, the


       1
         Such might be the case where a tree limb falls on the driver of a convertible
vehicle that is stopped at an intersection. In such circumstances, there may well be no
forceful contact between the injured driver and the motor vehicle. The forceful contact
would be between the individual and the tree limb. But the accident would have occurred
while the convertible was being operated as a motor vehicle. Thus, it would appear the
accident would qualify for coverage under Tyrell even though it does not meet the
standard for a motor vehicle accident under Grelis.

                                             6
No. 34542-4-III
Ramm v. Farmers Ins. Co. of Wash.


incident did not qualify for PIP coverage.

                                     CONCLUSION

       The trial court's summary judgment order of dismissal is affirmed. Because the

Ramms are not the prevailing party, they are not entitled to costs or fees.

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

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040. ·




                                             Pennell, J.
WE CONCUR:




Fearing, CJ~\




                                                7




                                                                                        I
