97 Wash. App. 335 | Wash. Ct. App. | 1999
At issue in this appeal is whether Diamaco Inc.’s umbrella insurance policies issued by Travelers Casualty and Surety Company (formerly known as Aetna Casualty and Surety Company) covered the City of Seattle’s claims against Diamaco. The claims were for property damage incurred during a construction project that Diamaco performed under a contract with the City. Because the trial court correctly determined that there was no coverage under the policies, we affirm.
In July 1994, the City of Seattle awarded Diamaco a $1.4 million contract to construct several seismic retrofit systems for the Fauntleroy expressway. During construction in January 1995, City inspectors discovered defects in Diamaco’s work. Eventually, the City determined that defective epoxy likely affected two portions of Diamaco’s work on the retrofit, crossbeam blocks, and seat extenders. Because of the failure of the defective epoxy, the crossbeam blocks installed by or for Diamaco sustained physical damage in the form of cracking and spalling. Accordingly, the City directed Diamaco to replace the structures containing
Diamaco commenced this declaratory judgment action to establish that the City’s claims are covered under the comprehensive general liability insurance policies issued by Travelers. Based on the pleadings of Diamaco and Travelers, a record of stipulated facts, and briefing by the parties, the court entered findings of fact and conclusions of law. The court first concluded that coverage under the primary insurance policies was barred by a policy exclusion. The court further concluded that coverage under the umbrella policies was also barred by an exclusion.
Diamaco appeals. Travelers cross-appeals.
The proper framework for our analysis begins with the basic proposition that the determination of coverage is a two-step process.
In its cross-appeal, Travelers claims that the trial court erred by concluding that Diamaco met its threshold burden of establishing that the “property damage” here was within the insuring clause of the policies. Conversely, Diamaco contends that the claim is within the insuring clause and that no exclusion applies. Neither party is entirely correct.
Interpreting an insurance contract is a question of
I. Insuring Clause
Travelers argues that Diamaco’s claim was not eligible for coverage as “property damage” because there was no damage to the property of others, only to the property of the insured. We reject this argument.
The primary policies state:
We will pay those sums that [Diamaco] becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies.
Property damage is defined as:
Physical injury to tangible property, including all resulting loss of use of that property. ... or
Loss of use of tangible property that is not physically injured.
The plain language of the policies supports the view that the insuring clause covers a broad scope of property damage, both in terms of whose property is damaged and the character of the damage. The policy language, fairly read, does not support Travelers’ contention that the term “property damage” is limited to “property of another.”
Travelers claims that Weedo v. Stone-E-Brick, Inc.
The qualifying phrase, “to which this insurance applies” underscores the basic notion that the premium paid by the insured does not buy coverage for all property damage but only for that type of damage provided for in the policy. The limitations on coverage are set forth in the exclusion clauses of the policy, whose function it is to restrict and shape the coverage otherwise afforded.[
Thus, the court there denied coverage only because one of the policy’s enumerated exclusions applied. The court’s reasoning was not based on the theory that the insured’s defective workmanship did not constitute “property damage” within the insuring clause. Rather, it was based on a plain reading of the policy language.
Travelers also incorrectly claims that Westman Industrial Co. v. Hartford Insurance Group
Travelers’ reliance on Yakima Cement Products Co. v. Great American Insurance Co.
Yakima does not require us to abandon the principle of reading the insuring and exclusion clauses, as written, to determine if coverage exists. First, our Supreme Court there did not expressly state that “property damage” under CGL policies is always limited to the property of another. If the opinion had so held, then we would have expected to see a discussion of the rationale behind such a conclusion.
We also decline to follow the reasoning of Aetna Casualty & Surety Co. v. M&S Industries, Inc.
The language in the policy at issue in Schwindt further
As [Travelers] argues, it is true that a comprehensive general liability policy is normally intended to provide coverage for the property of another. However, that intent can be carried out in one of two ways: a) broad property damage coverage which relies on specific exclusions to limit coverage to the property of another; or b) [c]overage limited in the first place to the property of another. The language and structure of the policies in this case clearly adopt the first approach. Therefore, [Diamaco] has made its showing that there is generally coverage for the property damage here and Travelers must rely on specific exclusions to escape liability under the policy.
The trial court correctly concluded that Diamaco met its burden of showing that the loss was within the scope of the insuring clause of the policies.
II. Exclusion Clause
Having determined that the loss here falls within the insuring clause, we now turn to the second question: whether an exclusion applied to bar coverage. Diamaco’s principal contention is that the trial court erred by conclud
Because coverage exclusions “are contrary to the fundamental protective purpose of insurance,” they are “strictly construed against the insurer” and “will not be extended beyond their clear and unequivocal meaning.”
Exclusion (j) excludes coverage for “property damage” to:
(1) Property you rent, occupy or which is in your care, custody or control if:
(a) You agreed to provide insurance for it; or
(b) Such property is owned by a person or organization controlling the insured or is under the control of the insured.
The trial court concluded that both subsections of the exclusion applied here to bar coverage. But we need address only the first subsection of the exclusion to decide this case,
Diamaco first contends that there was no evidentiary support for the trial court’s conclusion that subsection (a) of the exclusion applied. In making this argument, Dia
Evidence in the record supports finding 39. As part of its pleadings, the City provided a copy of its “Standard Specifications for Road, Bridge, and Municipal Construction.” The City also provided an addendum pertaining to the Fauntleroy project, which expressly incorporated the standard specifications. And the standard specifications (as amended) stated that “[t]he Contractor shall obtain and maintain in full force and effect public liability and property damage insurance from the Award Date of the Contract until the Completion Date.” The specifications further required:
The Contractor shall not begin work under the Contract until the required insurance has been obtained and approved by the Owner. Insurance shall provide coverage to the Contractor, all subcontractors, and the Owner. The coverage shall protect against claims for personal injuries, including accidental death, as well as claims for property damages which may arise from any act or omission of the Contractor or the subcontractor, or by anyone directly or indirectly employed by either of them.[22 ]
This is substantial evidence supporting the court’s finding that Diamaco agreed to provide insurance for property within its care, custody, and control. The language of the standard specifications is broad, referring to “public liability” and “property damage” insurance. Nothing in that
In turn, this finding supports the trial court’s conclusion that subsection (a) applied because Diamaco had agreed to provide insurance for property within its care, custody, or control.
Because we conclude that coverage was barred under this exclusion, we need not address the remainder of Diamaco’s arguments regarding other exclusions.
III. Attorney Fees
Diamaco requests its attorney fees and costs for trial and appeal. RAP 18.1(a) authorizes an award of attorney fees if permitted by applicable law. Our Supreme Court has stated that an insured is entitled to attorney fees for prevailing in a legal action against the insurer to obtain the full benefit of its insurance contract.
We affirm the order.
Coleman and Appelwick, JJ., concur.
Reconsideration granted and opinion modified October 12, 1999.
Review denied at 140 Wn.2d 1013 (2000).
Schwindt v. Underwriters at Lloyd’s of London, 81 Wn. App. 293, 298, 914 P.2d 119, review denied, 130 Wn.2d 1003 (1996) (quoting McDonald v. State Farm Fire & Cas. Co., 119 Wn.2d 724, 731, 837 P.2d 1000 (1992)).
Id. at 298.
Id.
Daley v. Allstate Ins. Co., 135 Wn.2d 777, 783-84, 958 P.2d 990 (1998).
Id. at 784 (citations omitted).
Allstate Ins. Co. v. Peasley, 131 Wn.2d 420, 424, 932 P.2d 1244 (1997).
81 N.J. 233, 405 A.2d 788 (1979).
Weedo, 81 N.J. at 237.
51 Wn. App. 72, 80, 751 P.2d 1242 (finding that there was no coverage because the policy’s “products exclusion” applied), review denied, 110 Wn.2d 1036 (1988).
93 Wn.2d 210, 608 P.2d 254 (1980).
Yakima, 93 Wn.2d at 218-19.
See, e.g., Weedo, 81 N.J. at 238-241; Maryland Cas. Co. v. Reeder, 221 Cal. App. 3d 961, 967-68, 270 Cal. Rptr. 719, review denied (1990).
Daley, 135 Wn.2d at 784.
64 Wn. App. 916, 921-23, 827 P.2d 321 (1992).
M&S, 64 Wn. App. at 921.
Id. at 921-22; Guelich v. American Protection Ins. Co., 54 Wn. App. 117, 772 P.2d 536 (1989) (where insuring clause limited coverage to “physical injury,” court concluded that the loss of use of a view was not an insured loss); Federated Serv. Ins. Co. v. R.E.W., Inc., 53 Wn. App. 730, 733, 738, 770 P.2d 654 (1989) (holding that policy exclusions applied to bar coverage); Marley Orchard Corp. v. Travelers Indem. Co., 50 Wn. App. 801, 806, 809, 750 P.2d 1294, review denied, 110 Wn.2d 1037 (1988) (finding coverage where insured’s defective irrigation
Schwindt v. Underwriters at Lloyd’s of London, 81 Wn. App. 293, 295, 914 F.2d 119, review denied, 130 Wn.2d 1003 (1996) (emphasis added).
Stuart v. American States Ins. Co., 134 Wn.2d 814, 818-19, 953 P.2d 462 (1998).
City of Bremerton v. Harbor Ins. Co., 92 Wn. App. 17, 21, 963 P.2d 194 (1998); see also Teague Motor Co. v. Federated Serv. Ins. Co., 73 Wn. App. 479, 484, 869 P.2d 1130 (1994) (although exclusions are strictly construed against the insurer, courts will not override the clear intent of the parties).
State Farm Mut. Auto. Ins. Co. v. Ruiz, 134 Wn.2d 713, 721-22, 952 P.2d 157 (1998).
Mendoza v. Rivera-Chavez, 88 Wn. App. 261, 268, 945 P.2d 232 (1997), review granted in part, 135 Wn.2d 1005 (1998).
Clerk’s Papers at 760; 793 (emphasis added).
Olympic S.S. Co. v. Centennial Ins. Co., 117 Wn.2d 37, 53, 811 P.2d 673 (1991) (“an award of fees is required in any legal action where the insurer compels the insured to assume the burden of legal action, to obtain the full benefit of his insurance contract, regardless of whether the insurer’s duty to defend is at issue”).