Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

WEST COAST PIZZA COMPANY, INC. )
dba DOMINO'S PIZZA, a Washington            )       DIVISION ONE
corporation, and all covered locations,     )
                                            )       No. 65946-4-I
       Appellant/Cross-Respondent,          )
                                            )
                      v.                    )       ORDER GRANTING 
                                            )       MOTION TO PUBLISH OPINION
UNITED NATIONAL INSURANCE                   )
COMPANY RE: POLICY NO.                      )
XTP0079005,                                 )
                                            )
       Defendant,                           )
                                            )
NATIONAL CONTINENTAL                        )
INSURANCE COMPANY RE: POLICY                )
NO. CP7063115-6,                            )
                                            )
       Respondent/Cross-Appellant.          )
________________________________)

       Columbia Industries, not a party to this action, having filed a motion to 

publish opinion, and the hearing panel having reconsidered its prior 

determination and finding that the opinion will be of precedential value; now, 

therefore it is hereby:

       ORDERED that the unpublished opinion filed December 12, 2011, shall 

be published and printed in the Washington Appellate Reports.

       Done this _____ day of January, 2012.

                                     FOR THE COURT:

                                     ______________________________
                                                    Judge 

No. 65946-4-I / 2

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

WEST COAST PIZZA COMPANY, INC. )
dba DOMINO'S PIZZA, a Washington            )       DIVISION ONE
corporation, and all covered locations,     )
                                            )       No. 65946-4-I
       Appellant/Cross-Respondent,          )
                                            )
                      v.                    )       UNPUBLISHED OPINION
                                            )
UNITED NATIONAL INSURANCE                   )
COMPANY RE: POLICY NO.                      )
XTP0079005,                                 )
                                            )
       Defendant,                           )
                                            )
NATIONAL CONTINENTAL                        )
INSURANCE COMPANY RE: POLICY                )
NO. CP7063115-6,                            )
                                            )
       Respondent/Cross-Appellant.          )       FILED: December 12, 2011
________________________________)

       Dwyer, C.J.  --  West Coast Pizza Company, Inc. appeals from the trial 

court's summary judgment ruling that the insurance policy issued by National 

Continental Insurance Company -- which names West Coast Pizza as the only 

insured -- does not provide liability coverage for Mad Pizza Company, Inc.  

Because Mad Pizza was not an insured pursuant to the policy, and because 

West Coast Pizza has demonstrated no mutual mistake justifying reformation of 

the policy, we affirm.

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No. 65946-4-I / 3

                                            I

       West Coast Pizza and Mad Pizza are separate Washington entities that 

operate Domino's Pizza franchises in our state.  West Coast Pizza is owned by 

Bryan Dobb, Kevin Dobb, and Dean Brandt.  Bryan Dobb is the sole owner of 

Mad Pizza.  During the period of time relevant here, West Coast Pizza operated 

two Domino's franchises, and Mad Pizza operated 11 such franchises.  The 

Dobb brothers additionally operated Domino's franchises owned by three other 

Washington entities.  Collectively, these five entities operated 21 Domino's 

franchises and employed approximately 100 pizza delivery drivers.  

       In August 2006, the Dobbs employed the services of an insurance agent 

to obtain liability insurance coverage related to pizza delivery.  The application 

submitted by the insurance agent listed West Coast Pizza, "dba Domino's 

Pizza," as the sole applicant.  Although the application did not mention the other 

entities operating Domino's franchises, it did indicate the total number of delivery 

drivers to be 100.  

       Based upon that application, National Continental issued an insurance 

policy to West Coast Pizza for the period from September 1, 2006 to September 

1, 2007.  The insurance agent thereafter faxed to National Continental a 

schedule of locations, identifying the 21 franchise locations.  The schedule of 

locations was entitled "Location Schedule  --  West Coast Pizza."  The schedule

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No. 65946-4-I / 4

did not identify the other corporate entities, even though those corporations 

operated a majority of the listed locations.  

       On May 29, 2007, Mad Pizza delivery driver Solomon Quito was involved 

in an automobile collision resulting in injuries to Joy Tschernega.  Tschernega 

thereafter filed a negligence lawsuit in Snohomish County Superior Court 

against Quito and Mad Pizza, alleging that Quito was acting as an agent of Mad 

Pizza at the time of the collision.  West Coast Pizza is not named as a defendant 

in Tschernega's complaint.  

       National Continental refused to provide a defense against the Tschernega 

lawsuit, contending that, because West Coast Pizza had failed to complete 

requested audit information, the policy had been cancelled prior to the 

automobile collision.  West Coast Pizza thereafter filed a complaint for 

declaratory judgment, seeking a declaration that the National Continental policy 

was in effect on the date that the collision occurred.  National Continental moved 

for summary judgment, contending that it had the right to cancel the policy 

because West Coast Pizza had failed to complete and return audit 

questionnaires and that, in any event, the policy did not insure the vehicle 

involved in the collision.  The trial court denied National Continental's motion for 

summary judgment.  

       National Continental thereafter filed an additional motion for summary 

judgment, this time asserting that it had no duty to defend or indemnify Mad 

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No. 65946-4-I / 5

Pizza or Quito in the Tschernega lawsuit because neither Mad Pizza nor Quito 

was insured by the policy and because Quito's vehicle was not a "covered auto"

pursuant to that policy.  On this basis, the trial court granted National 

Continental's motion for summary judgment.  
       West Coast Pizza appeals.1

                                           II

       West Coast Pizza first contends that the National Continental insurance 

policy obligates National Continental to defend and indemnify Mad Pizza against 
the Tschernega lawsuit.2 We disagree.

       1 In addition, National Continental cross-appeals, contending that the trial court erred by 
denying its motion for summary judgment based upon cancellation of the insurance policy.  We 
need not address the propriety of that ruling in order to resolve this case.
       2 Neither party addresses whether West Coast Pizza's claim is justiciable, as required in 
order to obtain a declaratory judgment pursuant to the Uniform Declaratory Judgments Act
(UDJA), chapter 7.24 RCW.  Moreover, justiciability was not the basis for the trial court's ruling.  
Although we affirm on the basis of the trial court's ruling, we note that this claim is not 
justiciable -- a judicial determination of the dispute does not affect the rights of West Coast Pizza, 
and Mad Pizza, the rights of which are affected by resolution of this dispute, is not a party to this 
case.
       The UDJA provides that "[a] person interested under a . . . written contract . . . whose 
rights, status or other legal relations are affected by a . . . contract . . . may have determined any 
question of construction or validity arising under the . . . contract . . . and obtain a declaration of 
rights, status or other legal relations thereunder." RCW 7.24.020.  A justiciable controversy must 
exist in order to invoke a court's jurisdiction pursuant to the UDJA.  Pasado's Safe Haven v. 
State, 162 Wn. App. 746, 259 P.3d 280, 288 (2011).  To be justiciable, a claim must involve
       "(1) . . . an actual, present and existing dispute, or the mature seeds of one, as 
       distinguished from a possible, dormant, hypothetical, speculative, or moot 
       disagreement, (2) between parties having genuine and opposing interests, (3) 
       which involves interests that must be direct and substantial, rather than 
       potential, theoretical, abstract or academic, and (4) a judicial determination of 
       which will be final and conclusive."
Pasado's, 259 P.3d at 288-89 (quoting DiNino v. State, 102 Wn.2d 327, 330-31, 684 P.2d 1297 
(1984)).
       Here, West Coast Pizza is not a party to the underlying Tschernega lawsuit; Mad Pizza 
and Quito are the only named defendants.  Thus, as West Coast Pizza and Mad Pizza are 
separate corporate entities, West Coast Pizza will not incur liability for the automobile collision 
notwithstanding the outcome of that litigation.  For this reason, West Coast Pizza does not have 
a "direct and substantial" interest in whether the National Continental insurance policy provides 
coverage for the Tschernega claim.  Thus, the claim is not justiciable.  The trial court would have 
acted properly had it dismissed this lawsuit on that basis.

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No. 65946-4-I / 6

       "In reviewing a summary judgment order, the appellate court evaluates 

the matter de novo, performing the same inquiry as the trial court."  Snohomish 

County v. Rugg, 115 Wn. App. 218, 224, 61 P.3d 1184 (2002).  Summary 

judgment is appropriate where "there is no genuine issue as to any material fact 

and . . . the moving party is entitled to a judgment as a matter of law." CR 56(c).  

       Similarly, interpretation of an insurance contract is a question of law that 

is reviewed de novo by this court.  Bushnell v. Medico Ins. Co., 159 Wn. App. 

874, 881, 246 P.3d 856, review denied, 172 Wn.2d 1005 (2011).  "If a policy is 

clear and unambiguous, the court must enforce it as written."  Bushnell, 159 

Wn. App. at 882.  In such circumstances, the court may not modify the contract 

or "create ambiguity where none exists."  Bushnell, 159 Wn. App. at 882.  

Ambiguity exists only where the policy language is susceptible to different 

interpretations, each of which is reasonable.  Bushnell, 159 Wn. App. at 882.  

Where the policy language is ambiguous, "the language of the policy must be 

construed in favor of the insured."  Bushnell, 159 Wn. App. at 882.

       Insurance policies are contracts, and, thus, the principles of contract 

interpretation apply.  See, e.g., Quadrant Corp. v. Am. States Ins. Co., 154 

Wn.2d 165, 171, 110 P.3d 733 (2005).  "'The cardinal rule with which all 

interpretation begins is that its purpose is to ascertain the intention of the 

parties.'"  Berg v. Hudesman, 115 Wn.2d 657, 663, 801 P.2d 222 (1990) 

(quoting Corbin, The Interpretation of Words and the Parol Evidence Rule, 50 

                                          - 6 - 

No. 65946-4-I / 7

Cornell L.Quar. 161, 162 (1965)).  In Washington, "extrinsic evidence is 

admissible as to the entire circumstances under which the contract was made, 

as an aid in ascertaining the parties' intent."  Berg, 115 Wn.2d at 667.  However, 

such extrinsic evidence is admitted only "'for the purpose of aiding in the 

interpretation of what is in the instrument, and not for the purpose of showing 

intention independent of the instrument.'"  Berg, 115 Wn.2d at 669 (quoting J.W. 

Seavey Hop Corp. v. Pollock, 20 Wn.2d 337, 348-49, 147 P.2d 310 (1944)). 

       Here, the policy's liability coverage provision provided that National 

Continental "will pay all sums an 'insured' legally must pay as damages because 

of 'bodily injury' or 'property damage' to which this insurance applies, caused by 

an 'accident' and resulting from the ownership, maintenance or use of a covered 

'auto.'" Clerk's Papers (CP) at 424.  The policy further stated that National 

Continental had "the right and duty to defend any 'insured' against a 'suit' asking 

for such damages." CP at 424.  An "insured" included "[y]ou for any covered 

'auto'," where "you" referred to the named insured -- here, solely West Coast 

Pizza, "dba Domino's Pizza." CP at 424, 409.  The policy further provided that 

the covered autos were "those 'autos' you do not own, lease, hire, rent or borrow 

that are used in connection with your business" and included "'autos' owned by 

your 'employees.'" CP at 423; see also CP at 409.  Again, "your" was defined 

within the policy as the named insured.  CP at 423.

       The National Continental policy language clearly indicates that West 

                                          - 7 - 

No. 65946-4-I / 8

Coast Pizza was the only named insured; Mad Pizza was named nowhere within 

the policy.  Accordingly, pursuant to the unambiguous policy language, National 

Continental was obligated to pay only those sums legally owed by West Coast 

Pizza.  Similarly, the policy clearly indicated that National Continental's duty to 

defend and indemnify was owed solely to the named insured -- here, West Coast 

Pizza.  Moreover, the only "autos" covered by the policy were those used in 

connection with West Coast Pizza's business and owned by West Coast Pizza's 

employees.  Thus, both the liability coverage provision and the description of 

automobiles covered by the policy unambiguously indicate that the National 

Continental policy did not provide coverage to Mad Pizza with regard to the 

Tschernega lawsuit.  Neither Mad Pizza nor Quito was a named insured within 

the policy, and the automobile driven by Quito when the collision occurred was 

not a "covered auto."

       Nevertheless, West Coast Pizza contends that extrinsic evidence 

demonstrates that the parties intended the National Continental insurance policy 

to provide coverage for the Domino's franchise location -- operated by Mad 
Pizza -- where Quito was employed.3 Specifically, West Coast Pizza points to 

the insurance application, the schedule of locations provided to National 

Continental, the number of delivery drivers indicated within the insurance policy, 

and the premium paid for the policy.  Although we may consider such extrinsic 

       3 The schedule of locations was not a part of the National Continental insurance policy. 
Moreover, the policy provided coverage for damages resulting from automobile collisions 
involving "covered autos" when such damages were legally owed by the named insured on the 
policy -- not for particular franchise locations.

                                          - 8 - 

No. 65946-4-I / 9

evidence, we may do so only in order to resolve the determinative issue -- the 

intention of the parties.  Berg, 115 Wn.2d at 667-69.  Here, none of the evidence 

cited by West Coast Pizza indicates that National Continental intended to insure 

Mad Pizza and its delivery drivers.

       First, the insurance application, although stating the number of delivery 

drivers to be 100, listed West Coast Pizza as the only applicant.  Mad Pizza was 

named nowhere within the application.  Moreover, the schedule of locations 

provided to National Continental indicated that all 21 locations were operated by 

West Coast Pizza, as the list was entitled "Location Schedule  --  West Coast 

Pizza." CP at 279.  Although the insurance policy indicated the number of 

delivery drivers to be 100, the policy language unambiguously provided that the 

only "covered autos" were those driven by employees of West Coast Pizza.  

Finally, even if the premium paid was determined based upon the number of 

locations and drivers, there is no evidence that the premium would be the same

had the policy included as named insureds all five of the business entities that 

operated those locations and employed those drivers. 

       The "plain, explicit language [of an insurance policy] cannot be 

disregarded, nor an interpretation given the policy at variance with the clearly 

disclosed intent of the parties."  Davis v. N. Am. Accident Ins. Co., 42 Wn.2d 

291, 297, 254 P.2d 722 (1953).  At best, the evidence cited by West Coast Pizza 

demonstrates that National Continental intended to provide coverage for West 

                                          - 9 - 

No. 65946-4-I / 10

Coast Pizza that included 100 delivery drivers at 21 locations -- not that National 

Continental intended to insure Mad Pizza, which was named neither in the 

insurance application nor in the insurance policy.  Because the unambiguous 

language of the National Continental insurance policy indicates that National 

Continental had no duty to defend or indemnify Mad Pizza against the 

Tschernega lawsuit, the trial court properly granted National Continental's 

motion for summary judgment.

                                           III

       West Coast Pizza further contends that reformation is an appropriate 

remedy because both National Continental and West Coast Pizza intended that 

the insurance contract provide coverage for automobiles driven by Mad Pizza 

employees.  We disagree.

       Mutual mistake will support reformation of a contract where the 

contracting parties had identical intentions but the writing materially varies from 

that intent.  Denny's Rests., Inc. v. Sec. Union Title Ins. Co., 71 Wn. App. 194,

212, 859 P.2d 619 (1993).  Contracts are not reformed for mistake; writings are.  

A & A Sign Co. v. Maughan, 419 F.2d 1152, 1156 (9th Cir. 1969).  "The mistake 

must be proved by clear, cogent and convincing evidence, and if doubts exist as 

to the parties' intent, reformation is not appropriate."  Denny's Rests., 71 Wn. 

App. at 212.  "Reformation is not a proper remedy for the enforcement of terms 

to which the defendant never assented." 7 Joseph M. Perillo, Corbin on 

                                         - 10 - 

No. 65946-4-I / 11

Contracts § 28.45 at 302 (rev. ed. 2002).  Moreover, "[t]he unexpressed intention 

of one party is meaningless as to the mutual intention of the parties."  Am. States 

Ins. Co. v. Breesnee, 49 Wn. App. 642, 646, 745 P.2d 518 (1987).

       As explained above, the record does not reflect that National Continental 

intended to insure Mad Pizza and its delivery drivers.  Rather, the 

uncontroverted evidence -- including that West Coast Pizza was the only entity 

named on the insurance application and that West Coast Pizza was the only 

named insured pursuant to the National Continental policy -- establishes that 

National Continental intended to provide liability coverage for West Coast Pizza 

alone.  At most, the evidence establishes unilateral mistake on the part of the 

Dobb brothers and Brandt -- they desired to procure insurance for various 

corporations but did not take the necessary steps to do so.  Unilateral mistake 

cannot be the basis for reformation.  Keierleber v. Botting, 77 Wn.2d 711, 715, 

466 P.2d 141 (1970); Oliver v. Flow Int'l Corp., 137 Wn. App. 655, 664, 155 P.3d 

140 (2006) (noting that reformation for unilateral mistake is proper only where 

the non-mistaken party engaged in inequitable conduct).

       Because West Coast Pizza has not shown that the writing at issue -- the 

insurance policy -- is at variance with the mutual intent of the contracting parties, 
reformation is not an appropriate remedy.4

       Affirmed.

       4 Because West Coast Pizza is not a prevailing party, its request for an award of attorney 
fees on appeal is denied.

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No. 65946-4-I / 12

We concur:

                                         - 12 -