99 Wash. App. 271 | Wash. Ct. App. | 2000
In 1996, after investigative demolition at the Panorama Village Condominium Complex revealed extensive structural decay, Panorama’s homeowners association sought coverage from Allstate Insurance Company under a policy provision that provides coverage for property in danger of imminent collapse caused by hidden decay. Allstate refused to defend on the theory that its policy’s
FACTS
Panorama Village is a four-building, 54-unit condominium complex built in Redmond in 1979. In late 1995 and early 1996, in response to reports of maintenance problems and “noticeable deterioration” in one of the units, Panorama’s homeowners association solicited repair proposals from several contractors who offered widely varying estimates of damage and projected repair costs. In February 1996, a new property manager at Panorama recommended hiring an architect to evaluate the complex and prepare a repair proposal on which each of the contractors could bid. The Association hired architect Norman Sandler to lead a team that included a contractor, a roofing specialist, and a structural engineer on an initial inspection on May 10, 1996. After this inspection, Sandler reported “critical and potentially dangerous problems” resulting from rot and excessive deterioration in five distinct areas. Suspecting “structural failure,” the team recommended investigative demolition. The Association agreed, and in late June 1996, the team removed exterior siding and portions of walls. On July 1, 1996, the inspection team reported severe structural rot at nearly every location opened for inspection and warned of an imminent risk of collapse. The Association claims that “because the structural decay was hidden behind exterior siding and other finishes,” this inspection revealed “for the first time” extensive structural decay.
Before trial, both parties moved for partial summary judgment on coverage issues. Allstate advanced a “known risk” theory, arguing that the Association knew or should have known when purchasing insurance from Allstate that it had a loss covered by the policy. The Association’s summary judgment motion alleged that Panorama was at risk for direct physical loss involving collapse and that the cause of the imminent collapse was hidden decay. The trial court denied Allstate’s motion, granted the Association’s motion, and entered a judgment declaring that Panorama “is at risk of direct physical loss involving collapse,” that the “predominant cause of the risk of collapse at plaintiff’s property is decay,” and that the “decay that is the predominant cause of the risk of collapse at plaintiff’s property is, as a matter of law, ‘hidden.’ ” The court also entered an order dismissing Allstate’s one-year suit-limitations defense. These summary judgment rulings did not address where or to what extent damage existed at Panorama. After the trial court denied reconsideration, the parties reached a partial settlement under which Panorama dismissed several of its claims and Allstate dismissed its remaining affirmative defenses, including the known risk defense.
Left for resolution at trial were two issues: the scope of Allstate’s repair obligation, which the trial court viewed as
Following the “scope of repair” bench trial, the court issued two orders, one on September 9, 1998, and one on November 23,1998,
DISCUSSION
The Policy’s Suit-Limitation Provision
The policy contains a suit limitation provision that requires insureds to bring coverage actions within “one year after a loss occurs.” Allstate contends that because
The Association argues that requiring suit within “one year after a loss occurs” is logical when the loss is a onetime catastrophe such as a fire or flood. But because the provision is ambiguous as applied to progressive losses, a reasonable insured would interpret the clause as allowing it to wait until the loss is complete, regardless of when it occurred or when the insured first discovered it. This position is untenable because it would allow an insured who is fully aware of significant continuing property damage to wait until the property actually collapses before making a claim. Allstate is correct that public policy, case law, and common sense dictate that an insured should act with reasonable diligence once an event occurs that puts it on notice of a cognizable coverage claim.
To support its argument that an insured is entitled “to maintain coverage rights throughout the time of a continuing loss,” the Association cites three Washington cases,
When the Association discovered or could have discovered covered damage under the Allstate policy is therefore relevant to Allstate’s defense. The Association sought coverage under the policy’s collapse provision, which obligates Allstate to “pay for risk of direct physical loss involving collapse of a covered building or any part of a covered build
In Hillhaven Properties Ltd. v. Sellen Construction Co.,
Whether the Decay was “Hidden”
We next address the definition of “hidden” as used in the Allstate policy. Although Allstate’s policy excludes coverage for property damage from rot, the Association may seek coverage for property in imminent danger of collapse caused by “hidden” decay. In response to the Association’s motion for summary judgment on the collapse issue, the trial court ruled that the “physical loss that involves collapse in this case was hidden because it was essentially out of sight, behind the siding, and was obscured from view behind the siding.” The trial court reasoned that although there “may have been cues, clues, symptoms, signs, of such nature of decay . . . [which] may, indeed, have indicated something about the quality of the damage,” these clues were not relevant to the question of whether the loss was hidden.
Webster’s Third New International Dictionary 1065 (1966) defines “hidden” as “being out of sight or off the beaten track: concealed,” “unexplained, undisclosed, obscure, secret,” and “obscured by something that makes recognition difficult.” Although the Association’s definition is the first listed, it is not reasonable when viewed in context of the Allstate policy.
Right to Jury Trial
Allstate next contends that because the trial court had already construed the language of the policy in response to the parties’ summary judgment motions, the issues left for trial were “legal, not equitable, in nature” and should have been resolved by a jury. As previously noted, following the summary judgment ruling the parties entered into a stipulation and order of dismissal which provided:
Only the following issues remain for trial on February 23, 1998: damages/declaratory relief regarding scope of repair, plaintiff’s claim for attorney’s fees and other litigation expenses, plaintiff’s claim for relocation expenses, and defendant’s corresponding defenses to the claim for attorney’s fees and other litigation expenses and relocation expenses.
At a pretrial hearing, the court bifurcated the damages claim and addressed whether the scope of repair under the policy for the property damage was triable to a jury as a matter of law. The court decided that the scope of repair question involved substantial equitable claims and decided to enter a declaratory judgment determining the scope of Allstate’s repair obligations which would, in turn, require analysis of “what is subject to collapse and what is hidden.” Allstate claims that these are factual issues that should have been decided by a jury. The Association responds that the trial court “properly exercised its equity jurisdiction to render declaratory judgment crafting the scope of repair . . . .”
In its factual findings after the scope of repair trial, the trial court explained its rationale for deciding that these issues were “not appropriate for jury trial”:
*283 The actual necessary repairs is [sic] not now known, and cannot be known, in part because substantial decay exists (or is likely to exist) in known areas of buildings as identified in the scope of repairs but the extent of that damage will remain unknown until the exterior of those portions of the buildings are opened up for observation. In addition, the scope of repair to be funded by Allstate will require the ongoing jurisdiction of this court: As areas of the building are opened, additional details of the necessary repair may need to be declared; disputes over the scope and details of architectural and engineering work . . . may need to be resolved; and the selection or reasonable costs of professionals or contractors for the repairs may require judicial resolution if the parties cannot agree. None of these issues is capable of current resolution by a trial to the jury. Moreover, the risk of direct physical loss for which a scope of repair must be framed is ongoing .... This factor compounds the inability of a jury trial to address the scope of repairs that is reasonably necessary and that is to be funded by Allstate at such time as the repairs will actually take place.
The trial court’s explanation that the scope of repair could not be reasonably estimated at the time of trial is accurate. “In determining whether a case is primarily equitable or legal in nature, the trial court is accorded wide discretion, the exercise of which will not be disturbed except for a clear abuse.”
Imminent Danger of Collapse
Allstate contends that it was entitled to judgment as a matter of law on the collapse issue because the Association failed to present any evidence from a “structural engineer or anyone qualified to testify about the structural integrity of the complex” that portions of the complex were in imminent danger of collapse from hidden decay. It argues that because the Association bore the burden of establishing coverage, the trial court erred in entering summary judgment in the Association’s favor on this issue.
Attorney Fees and Litigation Expenses
Finally, Allstate challenges the trial court’s attorney fees award. First, it contends that the Association should not have received an award of $170,068.50 for work done in preparation for the scope of repair trial because the trial addressed the value of the Association’s claim rather than whether Allstate was obligated to provide coverage.
In Olympic Steamship Co. v. Centennial Insurance Co.,
Before trial, the court correctly observed that the trial would address “what is subject to collapse and what is hidden.” This necessarily involved coverage determinations and can be accurately characterized as assessing “the extent of benefits provided” under Allstate’s policy. The trial court noted that it “did not take up, and there remains in the balance of the case, a claim involving certain expenses of Panorama Village and also what the cost of repairs is once the scope of coverage is finally concluded.” As the trial court recognized, attorney fees would not be appropriate at that damages trial, but they are warranted here.
Second, Allstate claims that the court erred by failing to deduct fees the Association incurred on unsuccessful claims. At trial, Allstate alleged that the Association requested $26,241 in attorney fees for denied or dismissed claims. In considering this claim, the trial court deducted $18,517 from the $26,241 amount for time the Association spent in attempting to establish coverage for relocation expenses and on what the trial court and the parties referred to as “Sandler alternate schematic repair,”—an ultimately unsuccessful theory. As for the remaining $7,724, the court found that “such time was reasonably related to plaintiff’s ultimately successful prosecution of coverage in this case.” Allstate has failed to establish that the trial court abused its discretion in so ruling.
This court recently recognized in American Civil Liberties Union v. Blaine School District No. 503 (ACLU), that the cost provisions in Washington’s civil rights statute,
We reverse the trial court’s entry of summary judgment in the Association’s favor and remand for a determination of whether the Association instituted this action in a timely fashion and whether the damage it complains of was “hidden.” Should the Association prevail on either of these issues on remand, the trial court should deduct from its costs award amounts not authorized by RCW 4.84.010 and calculate any attorney fees due the Association.
Reversed and remanded.
After modification, further reconsideration denied March 17, 2000.
. Review granted at 141 Wn.2d 1024 (2000).
The stipulation clarifies that “only the following issues remain for trial damages/declaratory relief regarding scope of repair.”
A supplemental order under CR 54(b) was necessary because the initial order did not adjudicate all claims, and thus it was neither final nor appealable.
This court reviews legal issues de novo. Brown v. ProWest Transp. Ltd., 76 Wn. App. 412, 886 P.2d 223 (1994).
11 Wn. App. 632, 524 P.2d 427, review denied, 84 Wn.2d 1014 (1974).
106 Wn.2d. 806, 725 P.2d 957 (1986).
134 Wn.2d 413, 951 P.2d 250 (1998).
94 Wn. App. 504, 972 P.2d 570, review granted, 138 Wn.2d 1008 (1999) (footnotes omitted).
Id. at 509.
221 Cal. App. 3d 1049, 271 Cal. Rptr. 1 (1990).
Id. at 1058.
Id. at 1059.
Id. at 1058-59 (quoting Abari v. State Farm Fire & Cos. Co., 205 Cal. App. 3d 530, 535, 252 Cal. Rptr. 565, 567 (1988) (emphasis omitted).
Whether to extend the discovery rule to the circumstances of a particular case is a “judicial policy determination.” Gazija v. Nicholas Jerns Co., 86 Wn.2d 215, 221, 543 P.2d 338 (1975).
See Dorsey v. Speelman, 1 Wn. App. 85, 459 P.2d 416 (1969).
133 Wn.2d 751, 766, 948 P.2d 796 (1997).
The trial court did think these facts were relevant to the known loss doctrine, which precludes insurance coverage for damage the insured was aware of
Dairyland Ins. Co. v. Ward, 83 Wn.2d 353, 358, 517 P.2d 966 (1974).
Dictionaxy definitions are helpful in determining plain meaning. Boeing Co. v. Aetna Cas. & Sur. Co., 113 Wn.2d 869, 882, 784 P.2d 507, 87 A.L.R.4th 405 (1990).
When construing insurance contracts, courts must apply only meanings that are reasonable in the context of the contract. See State Farm Gen. Ins. Co. v. Emerson, 102 Wn.2d 477, 484, 687 P.2d 1139 (1984).
See Hansen v. Friend, 118 Wn.2d 476, 485, 824 P.2d 483 (1992).
221 Cal. App. 3d at 1060, 271 Cal. Rptr. at 7.
King Aircraft Sales, Inc. v. Lane, 68 Wn. App. 706, 718, 846 P.2d 550 (1993).
Although Sandler’s team included a structural engineer, the engineer did not testify at trial.
117 Wn.2d 37, 53, 811 P.2d 673 (1991).
124 Wn.2d 277, 280, 876 P.2d 896 (1994).
131 Wn.2d 133, 147, 930 P.2d 288 (1997).
Id. (quoting McGreevy v. Oregon Mut. Ins. Co., 128 Wn.2d 26, 33, 904 P.2d 731 (1995)).
RCW 49.60.030(2).
RCW 70.105D.080.
RCW 42.17.340(4).
95 Wn. App. 106, 116, 975 P.2d 536 (1999).
ACLU, 95 Wn. App. at 117.
See McGreevy v. Oregon Mut. Ins. Co., 90 Wn. App. 283, 951 P.2d 798 (1998).