111 Wash. App. 901 | Wash. Ct. App. | 2002
The Port of Seattle (Port) appeals from two orders dismissing its action to recover insurance proceeds against its 1997 and 1998 insurers for the expenses it incurred upgrading its computer systems to avoid Year 2000 (Y2K) date recognition problems at the turn of the century. At issue is whether the Port timely filed its suit and whether the policies under which it sued covered its Y2Krelated expenses. Because the Port’s Y2K problem did not constitute a “computer virus,” we affirm the trial court’s order. We also hold that despite the Port’s fortuitous loss and timely suit, the sue and labor provision does not provide coverage and the inherent vice exclusion precludes it.
In the early to mid-1990s, the Port of Seattle began working on making its computer systems Y2K compliant. Although it took some measures at that time, its efforts did not begin in earnest until 1997. And it was not until testing and assessment of its systems in 1998 that the Port discovered it would incur losses on or after January 1, 2000.
In December 1998, the Port filed claims with several insurers with which it had policies in effect during that year (1998 insurers), seeking reimbursement for its upgrade expenses. In November 1999, it provided notice of claims to insurers that provided coverage during 1997 (1997 insurers). The 1998 insurers issued policies to the Port in effect from January 1, 1998, to January 1, 1999. The provisions of the 1998 agreements are identical in their pertinent provisions to those in the 1997 policies, with the exception that the term of the 1997 policies is January 1,1997, to January 1, 1998.
In November 1999, the Port brought suit against both groups of insurers. In June 2000, the 1997 insurers moved for judgment on the pleadings, arguing that the Port’s suit was untimely because it was not brought within the 12-month suit limitation period allegedly incorporated in the policies. The trial court granted the motion, and the Port then filed a motion for reconsideration. The trial court denied the motion.
In September 2000, the 1998 insurers moved for summary judgment, asserting not only the same 12-month suit limitation position, but also arguing that the Port sustained no covered loss during the policy period, the known loss/risk doctrine and the inherent vice exclusion precluded coverage, and the sue and labor provision did not provide coverage. The trial court granted the motion and denied the Port’s motion for partial summary judgment on the 1998 policies. The Port timely appeals the trial court’s orders dismissing its claims.
Standards of Review
The Port’s action against its 1997 insurers was dismissed on their motion for judgment on the pleadings. We review rulings granting a motion to dismiss under CR 12(b)(6) de novo. Dismissal is appropriate only if “ ‘it appears beyond a reasonable doubt that no facts exist that would justify recovery.’"
The Port’s suit against the 1998 insurers was dismissed under CR 56(c). Summary judgment is proper when there is no genuine issue about any material fact and the moving party is entitled to judgment as a matter of law.
“Computer Virus”
The Port seeks coverage for “loss of computer resources” due to a “computer virus” under the insurance agreements’ “Data Processing Media” inclusion provisions.
The policies do not define the term “computer virus.” Undefined terms in an insurance contract must be given their plain, ordinary, and popular meaning.
The interpretation of an insurance policy is a question of law, and summary judgment is appropriate if the contract has only one reasonable meaning when viewed in the light of the parties’ objective manifestations.
The insurers cite multiple consistent definitions of the term “computer virus.” In general, their definitions define computer virus as “a computer program usu. hidden within another seemingly innocuous program that produces copies of itself and inserts them into other programs and that usu. performs a malicious action.”
The Port defines biological viruses, not those related to computers. A computer system cannot suffer from a physical virus. And even under the Port’s definition, the virus must be transferable. Its Y2K programming problem, however, was merely the result of an original programming decision. It was not infected by anything external nor was it
The Port also contends that deliberate encoding of a two-digit year field is a computer virus. We disagree. The two-digit year code is contained within a specific computer program or system and does not replicate itself to other computers or systems.
Inherent Vice
An inherent vice is defined by various courts as “ ‘any existing defects, diseases, decay or the inherent nature of the commodity which will cause it to deteriorate with a lapse of time.’ ”
This insuring agreement does not insure against loss caused by the following, unless loss by a peril not otherwise excluded ensues, and then this company shall be liable only for such ensuing loss:
c. Inherent vice, wear, tear, gradual deterioration or depreciation.
The insurers maintain that the inherent vice exclusion precludes coverage for the Port’s claimed losses because the Y2K two-digit date field code is an internal, as opposed to external, cause. The Port contends that the peril is external, stating:
There is no “vice” about a two-digit date field code. It doesn’t destroy itself. Rather, the problem is the effect the two-digit date field code will have on the ability to use computer resources, and the attendant loss of data or corruption of data (all covered perils), in the event the date field code is not remediated.[21 ]
It further asserts that “[a]bsent an external event, i.e., date transition, Y2K would not have been a problem.” We do not agree.
In State Farm Fire & Casualty Co. v. Volding,
The Port attempts to cast the loss as external by arguing that absent an external event, date transition, Y2K would not have posed a problem. This contention is without merit. Under the Port’s reasoning, the defective bricks in Voiding would not be considered an inherent vice because it was the external freezing that caused the problem. But for the defective bricks, the freezing rain water would not have caused the damage. Likewise, but for the two-digit date field code programmed into the Port’s software, the arrival of January 1,2000, would not result in loss. Thus, the Port’s Y2K problem is an excluded inherent vice because the date field is an internal quality that brought about its own problem.
The Port next argues that if the inherent vice exclusion applies, its losses are covered as an ensuing loss. The ensuing loss exception to the inherent vice exclusion says that if one of the specified uncovered events takes place, any ensuing loss which is otherwise covered by the policy will remain covered. The uncovered event itself, however, is never covered. Here, the Port’s argument fails because the only peril here is the excluded Y2K problem.
In Aetna Casualty & Surety Co. v. Yates,
We do not think that a single phenomenon that is clearly an excluded risk under the policy was meant to become compensable because in a philosophical sense it can also be classified as water damage; it would not be easy to find a case of rot or dampness of atmosphere not equally subject to that label and the exclusions would become practically meaningless. In our case the rot may have ensued from water but not from water damage, and the damage ensuing from the rot was not the damage from the direct intrusion of water conveyed by the phrase “water damage.”[24 ]
In Vermont Electric Power Co. v. Hartford Steam Boiler Inspection & Insurance Co.,
Sue and Labor
A sue and labor clause is a contract provision that addresses the mutual duties owed by an insured and an insurer. It allows reimbursement to the insured for expenses it incurs to prevent or mitigate a covered loss.
In Wolstein v. Yorkshire Insurance Co.,
Once the policy expired, the underwriters were no longer liable for any new losses, and whatever action Wolstein took after coverage lapsed could not affect the underwriters’ liability one way or the other. Since the underwriters, in this case, were no longer liable for new losses once the policy lapsed and no covered peril had actually occurred, they received no benefit from Wolstein’s mitigating actions taken after December 13, 1990. It would be contrary to the purpose of the sue and labor provision to continue to hold the underwriters liable for Wolstein’s security and utility expenses incurred after the*915 policy expired because the underwriters were not liable for any losses that occurred after coverage lapsed.[32 ]
As we held in Wolstein, a sue and labor provision covers only losses that will occur during the policy period. The same rationale precludes coverage here because the loss the Port’s remediation efforts were designed to prevent would have occurred after the policies lapsed. As the Port’s chief technical officer, William Swedish, stated, the remediation program was to prevent the systems from becoming unusable after January 1, 2000.
The Port argues the covered loss was the problems it encountered during assessment. But that argument is tautological because the purpose of the sue and labor provision is to prevent or mitigate a covered loss. The covered loss cannot be both the losses that transpire during the prevention measures as well as the future loss the insured is trying to prevent.
The insurers did not have a duty to reimburse the Port for expenses spent to prevent a loss for which the insurers would not be liable. Because the Port sought to prevent losses that would occur on or after January 1, 2000, after the policies expired, there was no covered loss. And as we held above, the Port did not sustain a covered loss because no loss was caused by a computer virus.
Timely Suit
Common to both sets of insurers is the question whether the Port’s suit was untimely under the 12-month suit limitation of the 1943 New York Standard Fire Insurance Policy, also known as the “165-line” fire insurance form (standard form). Under the standard form, no suit for the recovery on any claim under a property insurance policy
No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless the Insured shall have fully complied with all the requirements of this policy. The Company agrees that any action or proceedings against it for recovery of any loss under this policy shall not be barred if commenced within the time prescribed therefore in the statutes of the State of Washington.
The insurers maintain that the policies incorporated the standard form because the Port allegedly admitted this fact in its complaint. Based on this admission, the insurers claim that the Port’s suit is barred as untimely under Graingrowers Warehouse Co. v. Central National Insurance Co.
In Schwindt, our Supreme Court held that the six-year statute of limitations for written contracts applied, rather than the 12-month standard form limitation, where the policy did not contain a one-year limitation provision. The Schwindt court rejected Commonwealth’s reliance on Simms v. Allstate Insurance Co.,
[a] fire policy that does not include a suit limitations provision is more favorable to the insured than the “standard fire policy” and, thus, the absence of such a provision in the policy here does not violate WAC 284-20-010(3).[43 ]
“Subparagraph (c) of WAC 284-20-010(3).. . permits an alternative form that provides ‘terms, conditions and coverages not less favorable to the insured than the “standard fire policy.” ’ ”
The insurers rely on Graingrowers. There, the district court for the Eastern District of Washington, applying
Because the standard form’s 12-month limitation applies when an insurance contract explicitly provides for it and the statute of limitations applies where there is no express provision, we must next decide whether the Port’s alleged admission in its complaint is legally binding on it.
In its complaint, the Port stated that its policies incorporate the standard form fire insurance coverage. The Port asserts that this alleged admission does not mean that the standard policy suit limitation applies because it made the assertion under only one of its five claims for relief. Its second claim for relief was titled: “Declaration of coverage for measures taken to prevent increased hazards.” Paragraph 55 of the complaint provided:
Pursuant to RCW 48.18.120, every property insurance policy sold in the state of Washington must be accompanied by a standard form fire insurance policy commonly known as the “New York Standard Fire Insurance Policy” or the “165-line” fire insurance policy. Each insurance policy issued by each of the defendant insurers, as required by Washington law, was accompanied by the identical standard form fire insurance policy.
[t]he Standard Fire Policy provision alleged in the Complaint dealt with reimbursing the insured for expenses incurred to prevent an increase in a hazard within the insured’s control and knowledge. The Port’s reliance on the “increase in hazard” provision of the Standard Fire Policy was an additional cause of action predicated on a provision not found in the Port’s manuscript policy.[47 ]
CR 8(e)(2) permits inconsistent pleading. It provides in pertinent part:
A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one count or defense or in separate counts or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as he has regardless of consistency and whether based on legal or on equitable grounds or on both.[48 ]
In Molsbergen v. United States, the Ninth Circuit stated that “[i]n light of the liberal policy embodied in [Federal] Rule [of Civil Procedure] 8(e)(2), we hold that a pleading should not be construed as an admission against another alternative or inconsistent pleading in the same case.”
Finally, the Port asserts that if we conclude that its suit was timely, the order dismissing the 1997 insurers
Affirmed.
Cox, A.C.J., and Appelwick, J., concur.
Reid v. Pierce County, 136 Wn.2d 195, 201, 961 P.2d 333 (1998) (quoting Cutler v. Phillips Petroleum. Co., 124 Wn.2d 749, 755, 881 P.2d 216 (1994), cert. denied, 515 U.S. 1169 (1995)).
Id.
CR 56(c).
Trimble v. Wash. State Univ., 140 Wn.2d 88, 92, 993 P.2d 259 (2000).
Id.
Marincovich v. Tarabochia, 114 Wn.2d 271, 274, 787 P.2d 562 (1990).
The policy provides in pertinent part:
H. Data Processing Media
1. Property Insured: Active data processing media, being property of the insured or property of others for which the insured may be liable.
*907 4. Perils Insured: This agreement insures against all risks of direct physical loss or damage to the property covered except as hereinafter provided. Coverage is specifically extended for a loss due to computer virus including loss of data and extra expense even if no direct damage has occurred to equipment, media or data.
7. Definitions: The term “active” data processing media, whenever used in this contract, shall mean all forms of converted data and/or programs and/or instruction vehicles employed in the insured’s data processing operations. Virus loss is defined to include direct physical loss, loss of computer resources, loss of data and corruption of data.
(Emphasis added.)
Boeing Co. v. Aetna Cas. & Sur. Co., 113 Wn.2d 869, 877, 784 P.2d 507 (1990).
Id.
Id. at 881.
Hall v. Custom Craft Fixtures, Inc., 87 Wn. App. 1, 9, 937 P.2d 1143 (1997).
Am. Star Ins. Co. v. Grice, 121 Wn.2d 869, 874, 854 P.2d 622 (1993), supplemented by 123 Wn.2d 131 (1994).
Transcon. Ins. Co. v. Wash. Pub. Utils. Dists’. Util. Sys., 111 Wn.2d 452, 457, 760 P.2d 337 (1988) (citing Morgan v. Prudential Ins. Co. of Am., 86 Wn.2d 432, 434-35, 545 P.2d 1193 (1976)).
Mercer Place Condo. Ass’n v. State Farm Fire & Cas. Co., 104 Wn. App. 597, 602, 17 P.3d 626 (2000), review denied, 143 Wn.2d 1023 (2001).
Id. at 603.
Mekriam-Webster’s Collegiate Dictionary 1316 (10th ed. 2001); see also The American Heritage Dictionary op the English Language 380 (4th ed. 2000) (defining computer virus as “[a] computer program that is designed to replicate itself by copying itself into the other programs stored in a computer”).
Webster’s Third New International Dictionary 2556 (1993).
See Jeff Jinnett, Legal Issues Concerning the Year 2000 Computer Problem, in Understanding, Preventing and Litigating Year 2000 Issues: What Every Lawyer Needs to Know Now 103, 109 (Pub. law Inst. 1998); Bruce W. Foudree, The Year 2000 Problem and the Courts, 9 Kan. J.L. & Pub. Pol’y 515 (2000); Frederick Cohen, A Short Course on Computer Viruses 2 (John Wiley & Sons 2d ed. 1994); Robert Slade’s Guide to Computer Viruses 450 (Springer Verlag 1994).
Mo. Pac. R.R. v. Elmore & Stahl, 377 U.S. 134, 136, 84 S. Ct. 1142, 12 L. Ed. 2d 194 (1964) (quoting jury instruction); Vana Trading Co. v. S.S. “Mette Skou”, 556 F.2d 100, 104 (2d Cir.), cert. denied, 434 U.S. 892 (1977); Archer-Daniels-
Employers Cas. Co. v. Holm, 393 S.W.2d 363, 367 (Tex. App. 1965).
(Footnote omitted.)
426 S.W.2d 907 (Tex. App. 1968).
344 F.2d 939 (5th Cir. 1965).
Id. at 941.
72 F. Supp. 2d 441 (D. Vt. 1999).
Id. at 445.
Reliance Ins. Co. v. The Escapade, 280 F.2d 482, 488-89 (5th Cir. 1960).
Id.
Id.
The sue and labor clause provides in full:
In case of actual or imminent loss or damage by a peril insured against, it shall, without prejudice to this insurance, be lawful and necessary for the Insured, their factors, servants, or assigns to sue, labor and travel for, in and about the defense, the safeguard and the recovery of the property or any part of the property Insured hereunder. Acts of the Insured or of the Company in recovering, saving, and preserving the Insured property shall not be considered a waiver or an acceptance of abandonment. The Company shall contribute to the*914 expenses so incurred according to the rate and quantity of the sum herein insured.
97 Wn. App. 201, 985 P.2d 400 (1999).
Id. at 219.
As counsel acknowledged at oral argument, the sue and labor provision applies only where the insured takes measures to prevent or mitigate a covered loss.
The standard form here provides:
No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after inception of the loss.
711 F. Supp. 1040 (E.D. Wash. 1989).
RCW 48.18.200(1)(c) prohibits suit limitations clauses in insurance policies that limit a right of action against an insurer to a period of less than one year from the time when the cause of action accrues in connection with all insurances other than property and marine and transportation insurances. In contracts of property insurance, or of marine and transportation insurance, such limitation shall not be to a period of less than one year from the date of the loss.
RCW 48.18.120(1) authorizes the insurance commissioner to promulgate regulations as necessary to “effect reasonable uniformity in all basic contracts of fire insurance.”
WAC 284-20-010(3), promulgated under RCW 48.18.120(1), provides in pertinent part:
Except for the provisions of the next succeeding three paragraphs, no company shall issue any basic contract of fire insurance covering property or interest therein in this state other than on the form known as the 1943 New York*917 Standard Fire Insurance Policy, herein referred to as the “standard fire policy”!.]
140 Wn.2d 348, 997 P.2d 353 (2000).
144 Wn.2d 130, 26 P.3d 910 (2001).
RCW 4.16.040.
27 Wn. App. 872, 873, 621 P.2d 155 (1980).
Schwindt, 140 Wn.2d at 355 (emphasis omitted).
Id. at 355 n.6 (quoting WAC 284-20-010(3)(c)).
Graingrowers, 711 F. Supp. at 1045.
Id.
(Citation omitted.)
CR 8(e)(2).
757 F.2d 1016, 1019 (9th Cir.) (citing Shipek v. United States, 752 F.2d 1352, 1356 (9th Cir. 1985)), cert. dismissed, 473 U.S. 934 (1985).
See also Caulfield v. Kitsap County, 108 Wn. App. 242, 251, 29 P.3d 738 (2001) (citing Nast v. Michels, 107 Wn.2d 300, 308, 730 P.2d 54 (1986)).
Because of our disposition of the other issues, we do not reach the question whether the known risk principle precludes the Port’s claims under the policies.