*1 8, February part; otherwise Argued reversed and remanded and submitted 15, 1993, Globe’s reconsideration and Underwriters’ affirmed December February petitions March both for review denied reconsideration denied (318 458) Or COMPANY, RANGER INSURANCE Respondent, INC., COMPANY, & FEED GLOBE SEED an Idaho corporation,
Appellant, LONDON, AT LLOYD’S UNDERWRITERS association, an unincorporated Respondent. A74944)
(9101-00670; CA
322-a *3 322-b argued appellant.
H. Lee Cook the cause for himWith Frey Cooper the Stewart. Jan briefs were D. Sokol and Stafford & Templeton argued respondent Donald cause Company. Insurance On the brief were Thomas H. Tongue Carney, Higgins Tongue. Dunn, Allen, &
Jeffrey argued respondent V. Hill the cause for Underwri- at ters With him on London. the brief were Bradford H. Lamb and & Zarosinski Hill. Presiding Judge, Warren,
Before Edmonds Judges. Landau,
LANDAU, J. concurring part; dissenting part. Warren, J.,P. *4 LANDAU, J. Company (Ranger)
Ranger filed this Insurance contract with Globe of its insurance for reformation action (Globe) judgment declaring a and for & Feed Co. Seed Ranger duty indemnify for a claim to defend or Globe has no Service). (Forest against by the Forest Service filed it U.S. against Ranger for breach of contract Globe counterclaimed and for a declaration Ranger obligation has an to defend third-party complaint1 indemnify. a Globe also filed or (Lloyd’s) against London Underwriters at indemnification. summary judgment and
After various motions for summary judgment, partial a went to trial without the case jury. claims, all found Globe on The trial court part. part appeals. We affirm in reverse Globe family a that mixes and sells seeds. Globe is business generally president responsi- is McEUiott is Lawrence Beginning procuring ble for Globe’sinsurance.
employed agent. David Werbeck as its insurance Werbeck types purchase advised McEUiott about what of insurance to Together, and what insurance available on market. annually McEUiott and Werbeck reviewed Globe’s business application needs and filled out insurance forms.
Among policies the insurance that Werbeck obtained general Ranger. liability for Globe was “property damage,” defined covered which was as including injury all Physical tangible property, “a. of that resulting property; loss use is physi- tangible property “b. Loss use cally injured.” January
Beginning 30,1987, with no than Globe’s later provided: exclusion that included seed damage’ apply ‘property “This insurance does not arising out of: germinate; Failure of seed to
“1. seed; delivery “2. Erroneous properly Although characterized Globe’s as pleading third-party complaint. captioned “cross-claim,” its substance is more
“3. Error in mechanical mixture of seed.”
When the Ranger came policy up renewal 1988, Werbeck met with McElliott to review the application. Werbeck completed also an submitted estimated expo- form, sure which acknowledged liability seed exclusion. On the basis that application, Ranger renewed the liability (1988 November, effective policy That policy). policy contained the seed liability exclusion.
When the came for renewal policy up in again (1989 November, 1988 policy), Werbeck and McElliott fol- lowed the same application The process. application again acknowledged the exclusion. The 1989 policy issued, that was however, did not include an endorsement for the seed liability exclusion, declaration although policy referred to page seed merchant coverage as “excluding Misdelivery, Error in ’’ mixture and Germination At trial, failure. Ranger presented testimony the absence of the liability seed exclusion endorsement was due an error that occurred when Ranger revised coding system. (1990 November,
Globe renewed in again pol- icy), following the same application renewal The process. also did not include the policy liability seed exclusion. This did policy not mention the exclusion on the declarations page. 1990,
In early Ranger’s underwriting department learned it had failed to include seed exclusion in and, 23,1990, the 1990 on March an Ranger issued endorsement, amendatory the exclusion retroactively adding to the 1990 The policy. endorsement forwarded to Wer- was beck, who forwarded it to did Globe. not receive a November, from Globe. In response 1990, Globe renewed The new again. policy contained the exclusion.
Werbeck also purchased for Globe \“beedsmens errors omissions insurance” The coverage Lloyd’s. coverage effective all of 1989 and during part addition to other years. Lloyd’s “any covered claim ** * [f]or failure of seed sold to conform the [Globe] variety quality specified to be suitable for the purpose (e) Exclusion of the excluded specified.” claims “[f]or to or destruction of the any person.” grass mixture to the Forest seed In Globesold year, provide of that seed was sewn October Service. The October, 1989,the Forest fire. In control after forest that the seeds had erosion produced an infesta- notified Globe Service yellowstar December, 1989, In thistle, weed. a noxious tion of costs, and for eradication billed Globe Forest Service be needed in later it would notified that further eradication years. Globe to then filed claim The Forest Service (Forest claim). expenses recover its Service Lloyd’s Service claim. Werbeck notified of the Forest (e) policy. coverage, relying exclusion of its denied *6 Lloyd’s damage for contended that the claim was planted. grass property Werbeck where the seed had been Ranger then notified of the Forest Service claim.
Ranger’s adjuster that the loss occurred determined October, 1989, was in effect. in late so that the 1989 policy, adjuster a of the in the sent Unaware error rights advising possible reservation of policy letter Globe of two (1) (2) untimely notice, that claim and defenses: damage” may “property that the kind of was not constitute by policy. Ranger recommended that Globe covered also attorney expense against the at own to defend hire its own its maintaining that, that claim. Globe did while Forest Service damage. property the infestation was August adjuster 23, 1990, a letter to On sent type prop- stating that the did constitute the claim liability by Ranger’s general erty was covered rights. policy, Ranger its reservation of and that withdrew Ranger paid legal case and then assumed control of the expenses and costs that Globe had incurred. depart- underwriting Ranger’s October, 1990,
In erroneously ment aware that the 1989 had became liability On December omitted the seed exclusion. rights
Ranger letter to Globe. issued a new reservation Ranger claim under Forest Service continued to defend the rights. the new reservation of against January, Ranger filed this action
In policy to include the seed for of its Globe, reformation obliga- that it had no exclusion and for a declaration indemnify Service the Forest tion to defend Globe for answered, claim. Globe waiver and asserting as estoppel affirmative defenses. It counterclaimed for breach of contract and for a declaration that Ranger obligated defend and It also filed a indemnify. third-party complaint against for a Lloyd’s declaration had a Lloyd’s duty indemnify for any by sums recovered the Forest Service against Globe.
In July, Wallane Corporation, private land- owner adjoins whose the area property seeded the Forest Service, filed action separate the Forest for Service infestation its with yellowstar thistle. The Forest Service filed third-party complaint against Globe for indem- nification or contribution. Globe tendered defense of the claim to both Lloyd’s former denied Ranger. cover- latter age assumed defense under a reservation of then amended rights. Ranger include complaint cover- age and defense of the Wallane claim. and Globe made various motions for partial
summary judgment and summary judgment on issues contract and reformation, construction including Globe’s defenses on theories waiver The court estoppel. denied all of those motions. Globe and filed cross- motions summary judgment, which the also court denied. Lloyd’s also moved partial summary on the judgment claim, Wallane because claim was made after the policy had The court declined rule expired. on that motion until *7 after trial.
Ranger filed a second for summary motion partial Globe’s for breach of judgment dismissing counterclaims contract and fees and that had no attorney declaring Ranger duty indemnify defend under other any policy Globe than the 1989 The trial policy. granted court that motion.
During trial, case, after the presentation Ranger’s 54B(2), moved dismissal under ORCP arguing Ranger presented had insufficient evidence for reformation. case, The court the motion. At denied the close of Globe’s for a verdict on Lloyd’s ground moved directed claim was it liability Globe’s not covered because constituted for “property damage.” trial, allowing
After the court issued letter opinion, by reformation of contract Ranger’s adding insurance
327
of waiver
defenses
exclusion,
Globe’s
rejecting
seed
cov-
claims were not
that Globe’s
holding
and estoppel
held that Globe’s
The court also
by
Ranger policy.
ered
because
Lloyd’s policy,
covered
not
claims were
granted
The court
exclusion
applied.
on Wallane
summary judgment
partial
motion for
in favor of
a final judgment
court
then entered
claim. The
parties.
as
all
of all issues
Lloyd’s, disposing
Ranger
law
to all of the
that Idaho
applied
The court held
that ruling.
of the parties challenges
claims. None
of error
dispose
assignment
We first
Globe’s
its motion for summary judgment
denial of
trial court’s
In an appeal
on the claims
reformation.
trial,
of summary judgment
after
the denial
judgment
legal
reversible,
purely
unless the motion
based on
Payless
any
that are
factual
issues.
grounds
independent
(1985).
Brown,
v.
246, 708
1143
Stores
243,
300 Or
P2d
Drug
fact
claim
on material
issues of
depended
The reformation
Therefore,
will
at trial.
we
not reverse
litigated
that were
on that claim.
summary
denial of
judgment
of error
assignment
We next address Globe’s
claim for
denial of its motion to dismiss Ranger’s
trial court’s
54B(2).
54B(2) are
ORCP
Motions under ORCP
reformation.
Castro,
707,
Or App
Castro
51
granted.”
to be
“sparingly
(1981).
case”
clear
713,
Only
“unusually
P2d
an
the close
a trial court dismiss a
action before
nonjury
should
v. Tempest
Federal
Ins.
Deposit
Corp.
of all the evidence.
den 300 Or
rev
(1985),
Fugat,
75 Or
App
(1986).
deny a
In
the trial court’s decision to
reviewing
whole
54B(2), we consider the
dismiss under ORCP
motion to
whether there was evidence sufficient
record to determine
&
Scholes v.
Services
Sipco
prima
out a
case.
make
facie
Marine,
Inc., 103 Or
(1990);
P2d 694
App
P2d 1211
Rask,
720, 723, Jordan
66 Or
on its
premised
claim for reformation was
Ranger’s
made
underwriting
department
assertion
insurance
the 1989 and 1990
error
drafting
scrivener’s
had
which the parties
an exclusion to
policies by omitting
*8
a
reformation of contract
law generally permits
Idaho
agreed.
error,
negligently
even if
error was
correct a scrivener’s
McMurtrey,
made. Suitts v.
evidence a assumption upon they tion about a basic base[d] or vital fact which ’’ bargain. By- their Mutual Wood of Enumclaw Ins. (Ct 1984). Products, 107 Idaho Ranger’s The evidence was sufficient to establish prima right reform the to include the facie provision exclusion. Globe’s 1988 contained a exclud ing coverage resulting for from applied seed containing There errors. was evidence that Globe requested that exclusion when it renewal for apparently 1989. The omission the clause was uninten during Ranger’s tional and was the result of an error made coding procedure. produced revision of its Globe no evidence purchase policy Ranger that it intended to from that covered liability for In short, seed errors. there is evidence that the parties intended the exclusion to be in the contract at the time the contract was made. argues Ranger prima that, even if made out case reformation, it was nevertheless entitled
facie undisputed Ranger dismissal, because the evidence is right had waived to enforce the exclusion when it withdrew rights its reservation of and undertook Globe’s defense. According estopped asserting Globe, it is the exclu sion now. At outset, we note that never withdrew rights respect its reservation of with to the Wallane claim. estoppel argument Therefore, we address Globe’swaiver and only claim. as it concerns the Forest Service
Because of our limited standard of review of trial 54B(2), court’s denial of Globe’smotion we under ORCP will only support estoppel if the reverse evidence in of its waiver or undisputed. prevail defense is, indeed, For Globe to on either theory, Ranger’s it must demonstrate that it relied on con rights prejudiced by duct and that its were that reliance. The equitable estoppel elements of are: “(1) a representation false or concealment fact of a material (2) truth, with actual constructive knowledge not discover asserting did not know could party estoppel *9 (3) truth, concealment was representation the false or the (4) upon person that it be relied and the with the intent made whom the was made representation the to whom concealed, upon representa- the relied and acted facts were Theriault v. A.H. prejudice.” to his tion or concealment (1985). Co., 303, Inc., 307, 365 Idaho 698 P2d 108 Robins relinquishment is an intentional of known Similarly, waiver until the adverse party that is advantage binding right v. King, Brand S Corp. relies the waiver to detriment. (1981). 429 without Assuming, 102 639 P2d Idaho and to estoppel law waiver that Idaho deciding, permits in an insurance Globe policy, exclusion of coverage prevent it suffered detriment as any failed to demonstrate that has conduct. of Ranger’s consequence claim, was the sent Globe a Ranger After it notified of of letter and did not undertake defense timely reservation rights handle advice, lawyer the Globe hired a to Ranger’s of claim. On later, Four when withdrew its reserva- Ranger case. months of the case. There is no Ranger tion of assumed control rights, in the case was any change way evidence there was After four Ranger handled when assumed control. another letter, reservation but months, rights sent a second of Ranger to continued conduct the defense the case. is no actual to Globe. any prejudice
There evidence the law Globe controlled its own defense and chose initially was in when firm and the defense strategy progress of time which Globe Ranger period during took control. only would defend the claim was four Ranger believed itself, is not control, by loss of temporary months. Globe’s and is no evidence that Ranger evidence of there prejudice, made in the choice of counsel or the changes strategy. evidence that Globe was prejudiced Because there no conduct did not Ranger’s defense, Ranger’s assumption contract, the trial it of the deprive right reform motion under denying court did not err Globe’s to dismiss 54B(2). ORCP
We next turn to Globe’s error assignment partial motion for sum- Ranger’s court’s decision grant for breach of con- on Globe’s counterclaim mary judgment that, assuming even tract. had in its motion Ranger argued policies that liability do not contain the seed Ranger duty indemnify exclusion, had no to defend or and, therefore, Globe not be could found liable for breach of payment attorney contract and for fees. We need not decide granting Ranger’s whether court motion, the trial erred Ranger because it later concluded after trial that was entitled policies to reformation of its and that, on basis of that obligation reformation, arising had no improper mixing. assign out of seed Globe does not findings Therefore, error to trial court’s conclusions. partial summary in the issues raised motion are moot. See Hawkins, Smith 84 Or P2d evidentiary assignments Globe’s of error with respect Ranger require do not discussion. assigns ruling
Globe also error to the trial court’s *10 Lloyd’s that, as law, a matter of the “seedsmens errors and any liability omissions insurance” the costs weed does not cover for improper of eradication that resulted grass policyexpressly “any mixture seed.2 of The claim covers * * * [f]or by [Globe] failure of the seed sold conform to the variety specified.” specified quality purpose or to be for the suitable argues undisputed it
Globe that is that the seed it variety quality specified” sold did was “conform specified,” purposes and, therefore, “unsuitable for the arising out claims of the sales to the Forest Service should Lloyd’s argues be covered. that the Forest Service’s claim arising property damage from weed is a claim infestation (e) subject policy, and, therefore, is to exclusion of the which “damage property any excludes to or destruction of the of person.” unambiguously contends that the exclusion resulting damage does not refer to from weed In infestation. argues language alternative, it of the exclusion is ambiguous consequently, at and, least must be construed Lloyd’s regard the insurer. dissent Globe’s arguments “untenable,” as first because Globe asserted that “property damage” the Forest claim did constitute Service Ranger policy, under the because second its construction is with cases in which environmental inconsistent “property damage,” e.g., see, held to AIU Ins. Co. constitute summary judgment on the issue of [2] Globe does not challenge the trial court’s for the Wallane claim. ruling Lloyd’s motion for partial
331 Rptr 799 P2d Superior 807, 820, Cal Court, Cal 3d 274 v. 51 (1990), policy on its face was and, because the third 1253 crop only injuries as losses. economic such intended cover (e) language begin in whether the exclusion We with provision ambig ambiguous. law, a is Under Idaho contract susceptible of than one reasonable construc if it is more uous Hampshire Group, Burgess 108 v. Inc. Farms New tion. 1985). (Ct App Here, the P2d 869 Idaho 702 “property” any “damage” of to or destruction exclusion of reasonably party person it what either asserts could mean by Lloyd’s persuaded and the dissent’s means. We are not contrary. arguments merely had conceded that the
First, because Globe damage” “property as that claim constituted Forest Service does not mean term was defined in the “damage be to or destruction of claim must also considered (e) any person” the policy. under exclusion language meaning unambiguous in a contract evidence, such should be clear without reference to extrinsic e.g., See, as the construction of terms used in other contracts. Seed, Amer., v. Insurance Co. 94 Idaho Parma Inc. General contract Moreover, words one 658, 496 P2d may something entirely contract, mean different another particularly so in the case of different insurance and that is parties policies negotiated have different been Compare entirely purposes. Johnstone, different Foster (1984) family (“regular in a use” Idaho unambiguous) v. Mid- held with Moss automobile P2d Ins., Idaho Fire and Marine America *11 (1982) insuring (“regular for in a trucks commer use” “property hauling ambiguous). case, In the term cial held this policy. damage” expressly in That defined the is damage” meaning “property to the definition extends of physical injury property, just use to of of but loss include Lloyd’spolicy, property in contains contrast, The as well. that no “damage it definition of definition; contains no such broad * ** property” is reason to assume to at all. There no “property Lloyd’s dam the definition of Globe and intended Lloyd’s incorporated age” Ranger policy into the in the to be agreement suggest purposes policy. fact, In of each Ranger policy contrary. purpose to cover of was resulting improper for losses other than those Lloyd’s policy liability only mixtures; seed towas cover for improper purpose purchasing seed mixtures. Globe’s for both policies liability, was to cover two different of kinds not to duplicate coverage. Lloyd’s Thus, there is no basis and the damage” “property dissent’s assertion that the term in the Ranger policy equivalent must, law, as matter of be to ** * (e) “damage property” Lloyd’s term exclusion policy. although Lloyd’s
Second, and the dissent’s asserted pollution analogy to one, cases is a reasonable it not is without problems; analogies equally compelling. other are at least Lloyd’s that, and the dissent reason because weed infestation pollution, policy plainly is like excludes Globe’s claim as pollution damage well. In cases, however, there is actual the land or to is situated on the An land. damage anything. itself, infestation of weeds, does not A merely plant grows any weed is from a seed, like other. injuries Losses that result from to animals that eat the weeds might property damage, removing be but cost of weeds is consequence not a any that is loss soil or merely property. planting consequence other isIt variety specified. seeds that fail to conform to the In that regard, growing claim losses that result from unwanted arguably weeds is at least result from as a the same claim for losses that agricultural growing crops, unmarketable which “property damage.” has been held not to constitute See Casualty Hardison Seed Co. Co., v. Continental 56 Tenn (1966), 644, 410 SW2d 729 cert den Both kinds plants provide purchaser fail to benefit, the seed the intended plants and both kinds cause losses that result from their presence. unwanted
Third, and the dissent’s contention that the clearly only liability intended to cover for economic injuries “crop such as those that would be based losses” anything makes no sense. The nowhere mentions limiting coverage says losses,” about and it “economic nothing crops. policy only about if the Moreover, covered “crops,” grass grower then a seed like or distributor purchasing would have it, little interest unless a lawn “grass crops.”
333 arguments thing that is from the The one clear respect policy language clear with the of the is not liability law, Idaho “the bur weed Under for noxious seeds. precise language if it the insurer to use clear and den is on coverage.” scope Mid- of Moss v. to restrict the its wishes supra, Ins., 103 at 300. Fire and Marine Idaho America strictly favor of the must be construed in Contract exclusions terms, 103 at 300. failed define its insured. Idaho ambiguity specific of failure contributes to the and its to be supra; language. Johnstone, v. Mid- v. Moss the Foster Burgess supra; Ins., v. New America Fire and Marine Farms Group, supra, Hampshire Idaho at Wetherefore Inc. 108 834. construing language the most whole, the as a
examine meaning favorably insured, to determine County § 41-182; v. & exclusion. IC Kootenai Western Cas. Sur., 908, 910, Idaho application, which dis includes Globe’s majority grass closes that vast of Globe’s seeds sales were virtually mixtures. A seedsmen’s would be useless seed grower grass grower if the for to a seed could never recover liability plants According to for not intended for harvest. liability grass any Lloyd’s, grower could recover seed for delivery wrong grass resulting say, type of, from the golf putting green, team seed to a course for its a football pasturage. playing to a for its field or horse breeder its pol That of the would eviscerate the construction exclusion coverage icy’scoverage provisions, expressly call which delivery arising unsuitable seed. As claims out of Supreme explained: Idaho Court
“ favorably is to most insurance contract be construed [A]n coverage provide the insured and in such a manner as to full protection. risks rather than to narrow This for the indicated will of the lan- court not sanction construction insurer’s very object that will defeat the guage purpose County Ass’n,Inc., v.Panhandle Rodeo insurance.” Bonner (1980) 772, 776, 1102, (quoting 101 Idaho 620 P2d Company, Erikson Nationwide Mutual Insurance (1975)). Idaho P2d 841 for the therefore claim for We hold Globe’s damage” “property weed is not excluded as cost of eradication holding Lloyd’s policy, in trial court erred under the otherwise.
Reversed and remanded toas Globe’s action Lloyd’s; otherwise affirmed. concurring part; dissenting
WARREN, J.,P. part. agree majority regarding disposition
I with the *13 its of dispute Company (Ranger) the between Insurance (Globe). Ranger, and Globe Seed & Feed Co. As to we hold policy that the should be reformed to exclude claims for property damage and that that exclusion in no results cover- age Ranger’s policy. that, under Given the claim was neces- sarily property damage. majority one The takes the position property untenable that the loss in this case was damage policy, property damage under one insurance but not disagree, under I therefore, the other. with its reversal of the judgment (Lloyd’s) for Underwriters at London third-party Accordingly, Globe’s claim. I dissent from that portion opinion. of the
Lloyd’s “Seedsmens and Errors Omissions Insur- policy coverage ance” includes by failure of seed sold
“[f]or the Assured to to the conform variety quality specified or to purpose be suitable specified by any act, negligent reason of error or omission of the Assured or employees the conduct of the Assured’s (Emphasis supplied.) business[.]” preface policy explains purpose The that the of errors reputation and omissions insurance is to ensure of a professional, which is at “core of his livelihood.” (e) Lloyd’s policy provides
Exclusion of the that it pay legally obligated pay will not sums that Globe shall be arising any “damage out claims for to or destruction of the any property person.” Damage property is not defined in policy. Lloyd’s argues the property damage that the weed infestation was repaired by
that was of the removal property, weeds from the so that the does cover Although argued Globe’s claim. Globe had to the trial court damage property that the weed infestation was under Ranger’s liability policy, contradictory general takes a Globe position by arguing property that here the infestation is not damage under the errors and exclusion. omissions
335 is limited to actual physi- damage Globe argues property a truck harming storage such as a supplier’s cal damage, the exclusion is ambiguous also facility. argues the insurer. must be construed law, language when the is clear Under Idaho be determined coverage insurance must unambiguous, Aid employed. words plain meaning according (Mut.) (Ct P2d Co. Idaho Armstrong, Ins. 1991). The must what reasonable court determine the insured would have understood in the person position at Whether policy to mean. 119 Idaho 900. language of law for the court is ambiguous question language Johnstone, Foster v. P2d 107 Idaho determine. (1984). I conclude that the exclusion is not ambiguous for the claimed Globe coverage it excludes in this action. and I not found cases have not cited have parties
in Idaho
other
with
any
jurisdiction dealing
scope
damage exclusion
an errors and omissions insur-
*14
ance
The Idaho courts have not discussed the defini-
policy.
in
of insurance
any type
policy.
tion of property damage
with
The cases cited
deal
parties
general
have
liability
context,
In that
a number of courts
policies.
construed the undefined term
to include
damage”
“property
insured,
for the
losses
including
the broadest coverage
crop
Fire
St. Paul
See,
e.g.,
diminution of
crop yield.
Co.,
v.
and Marine Insurance Co. Northern Grain
F2d
365
(8th
Co. v. Munroe v. Cogswell
Ins.
1966);
361
Cir
Safeco
Co. v.
General Ins.
(1974);
Agency,
185,
165 Mont
(1975).
928,
Lloyd’s suggests cited, cov- construing damage those just broadly property as have insurance companies erage liability policies, general the definition of liability to limit changed policies general so as to and “physical” damage, property damage “tangible” See, e.g., Wyoming losses. coverage for economic exclude Co., P2d v. Ins. 401, 282 Or Transportation Sawmills It that the argues property restriction coverage physical damage general liability policies leaves intangible such as damages uninsured, economic loss giving rise to the need for errors and omissions coverage protect economic against purely losses.
Both Globe and
Lloyd’s rely Hardison Seed Co. v.
Co.,
Continental Casualty
644,
56 Tenn App
is similar to a because crop real and that neither property, is property damage. Lloyd’s the loss described in Hardison Seed Co. is the argues kind of loss that errors and omissions insurance is intended to cover: a customer’s business loss because goods delivered were of less than the warranted. quality Lloyd’s argues that kind of loss did not occur in this case.
I find Lloyd’s analogy damage caused by pollution In AIU Ins. Court, Co. Superior helpful. 51 Cal 3d (1990), Cal 799 P2d Rptr the California Supreme Court held of hazardous wastes from liability cleanup sites, sites, beneath the disposal groundwater the aqui fers beneath adjoining surface surrounding waters was property damage under standard comprehen Corp. See also Intel v. Hartford general sive policy. (9th 1991). Co., Acc. & Indem. 952 F2d 1551 A Cir similar *15 example is the effect of property damage methampheta mine such as vapor permeating porous materials, drapes, v. State Farm Fire & Co. and walls. Largent Casualty carpets (A71495), 116 Or rev den (1992), Largent, Or 528 In liability insurance general limited to “accidental direct property damage physical loss” covered the vapor contamination. ordinarily property liability policies cover
General persuaded damage. the weed infestation in this case I am damage coverage property aof come within the usual would tang- physical damage liability policy, general it because is Ranger’s policy, specifically property. however, excluded ible explanation damage. offered no reasonable such Globe has meaning why, term, in the absence of a definition of damage” “property should in an errors and omissions liability policy. general It is reason- different than that of a be policy that economic an errors and omissions covers able that property damage that is ordi- loss would exclude narily same beyond dispute by general liability policies. It is covered neither the insured nor the insurers intended in this case that coverage. question property damage The there to be damage. happened what here was whether inconsistently majority it was. I would hold that concludes “property damage” ambiguous, because in the the term is not case, this there is not more than one context of the facts of employed interpretation in the of the words reasonable Lloyd’s policy. I affirm the trial court’s Therefore, would holding does not cover the Forest Service claim.