Alverson v. Northwestern National Casualty Co.

1997 SD 9, 559 N.W.2d 234, 1997 S.D. LEXIS 9
CourtSouth Dakota Supreme Court
DecidedFebruary 12, 1997
DocketNone
StatusPublished
Cited by73 cases

This text of 1997 SD 9 (Alverson v. Northwestern National Casualty Co.) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alverson v. Northwestern National Casualty Co., 1997 SD 9, 559 N.W.2d 234, 1997 S.D. LEXIS 9 (S.D. 1997).

Opinions

SABERS, Justice (on reassignment).

[¶ 1] Summary judgment was granted to Alverson on the basis that the insurance policy issued by Insurer provided coverage for certain property damage caused by Al-verson in his masonry business. Insurer appeals. We reverse and hold that the exclusion for property damage when it is caused by “your work” is unambiguous. By notice of review, Alverson argues that his summary judgment motion could have been granted by applying the doctrine of reasonable expectations. We.disagree and affirm the denial of summary judgment on that issue.

FACTS

[¶ 2] Alverson subcontracted with Schmidt Construction (Schmidt) to perform masonry veneer and fireplace work on a new residence under construction in Sioux Falls. The masonry work left a residue of dirt and mortar on the house and its windows. Alverson’s employees applied an acid solution with a nylon scrub brush to remove this residue. When they scoured the windows, sand granules in the mortar left permanent scratches in the glass. Schmidt withheld $10,546.16 from the final payment due Alverson to cover the expense of replacing the windows.

[235]*235[¶ 3] Alverson filed a claim under his commercial general liability insurance policy (CGL). Insurer denied coverage on the basis that the loss was specifically excluded under the policy. Alverson sued and both parties filed motions for summary judgment. Alverson’s motion was granted and Insurer appeals. By notice of review, Alverson argues that the doctrine of reasonable expectations provides coverage under the policy as an alternative ground for summary judgment.

STANDARD OF REVIEW

[¶4] Our standard of review on a motion for summary judgment is well settled:

In reviewing a grant or a denial of summary judgment under SDCL 15-6-56(c), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the non-moving party and reasonable doubts should be resolved against the moving party. The non-moving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper.

Lamp v. First Nat'l Bank of Garretson, 496 N.W.2d 581, 583 (S.D.1993) (citation omitted). There are no genuine issues of material fact in this case. Therefore, summary judgment will be affirmed if the trial court has correctly decided the legal issues before it. Farmland Ins. Cos. v. Heitmann, 498 N.W.2d 620, 622 (S.D.1993) (citing Strok v. Town of Java, 463 N.W.2d 923 (S.D.1990); Bego v. Gordon, 407 N.W.2d 801 (S.D.1987); Trapp v. Madera Pacific, Inc., 390 N.W.2d 558 (S.D.1986)).

[¶ 5] The construction of a written contract is a question of law. Bell v. East River Elec. Power Coop. Inc., 535 N.W.2d 750, 754 (S.D.1995); American State Bank v. Adkins, 458 N.W.2d 807, 809 (S.D.1990); Dirks v. Sioux Valley Empire Elec. Ass’n, Inc., 450 N.W.2d 426, 427-28 (S.D.1990). We review questions of law de novo. Aadland v. St. Luke’s Midland Regional Medical Ctr., 537 N.W.2d 666, 668 (S.D.1995); King v. John Hancock Mut. Life Ins. Co., 500 N.W.2d 619, 621 (S.D.1993).

[¶ 6] 1. WHETHER THE POLICY EXCLUDES COVERAGE FOR ALVER-SON’S LOSS

[¶ 7] Both parties claim the language of the policy exclusion is unambiguous, yet each reaches a different conclusion as to its meaning. Therefore, we must first determine whether the exclusion is ambiguous. The CGL policy excludes coverage for certain property damage:

2. Exclusions.
This insurance does not apply to:
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(6) That particular part of any property that must be restored, repaired or replaced because “your work” was incorrectly performed on it.

[¶ 8] “A contract is ambiguous when application of rules of interpretation leave a genuine uncertainty as to which of two or more meanings is correct.” City of Watertown v. Dakota, Minnesota & E. R.R. Co., 1996 SD 82, ¶ 13, 551 N.W.2d 571, 574 (citing Baker v. Wilburn, 456 N.W.2d 304, 306 (S.D.1990)). As we stated in Olson v. United States Fid. & Guar. Co., 1996 SD 66, ¶ 6, 549 N.W.2d 199, 200, specific rules of construction apply to the interpretation of an insurance policy:

•Where the provisions of an insurance policy are fairly susceptible of different interpretations, the interpretation most favorable to the insured should be adopted. This rule of liberal construction in favor of the insured and strictly against the insurer applies only where the language of the insurance contract is ambiguous and susceptible of more than one interpreta-tion_ This rule does not mean, however, that the court may seek out a strained or unusual meaning for the benefit of the insured.

Id. (citing Rogers v. Allied Mutual Ins. Co., 520 N.W.2d 614, 616 (S.D.1994)). “[A]n am[236]*236biguity is not of itself created simply because the parties differ as to the interpretation of the contract.” Johnson v. Johnson, 291 N.W.2d 776, 778-79 (S.D.1980) (citations omitted). “An insurance contract’s language must be construed according to its plain and ordinary meaning and a court cannot make a forced construction or a new contract for the parties.” St. Paul Fire & Marine Ins. Co. v. Schilling, 520 N.W.2d 884, 887 (S.D.1994) (citations omitted).

[¶ 9] The policy defines “property damage” as “[p]hysical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it.” “Your work” is defined as “work or operations performed by you or on your behalf’ and “materials, parts or equipment furnished in connection with such work or operations.”

[¶ 10] Alverson and his employees worked on the windows to remove the mortar fi*om them. The key fact is that the windows were not damaged before the cleaning and could have been cleaned without being damaged. Alverson cleaned some of the windows himself and they were neither scratched nor damaged. His employees cleaned the other windows and scratched and damaged them. His employees did the work incorrectly and the windows had to be replaced.

[¶ 11] Section (6) excludes damage to any property, which includes the windows, that must be replaced because “your work” was incorrectly performed on it. The trial court concluded that the exclusion is ambiguous because the term “your work” is subject to two interpretations.

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Cite This Page — Counsel Stack

Bluebook (online)
1997 SD 9, 559 N.W.2d 234, 1997 S.D. LEXIS 9, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alverson-v-northwestern-national-casualty-co-sd-1997.