Cle Elum Bowl, Inc. v. NORTH PACIFIC INS.

981 P.2d 872
CourtCourt of Appeals of Washington
DecidedAugust 5, 1999
Docket17487-5-III
StatusPublished
Cited by2 cases

This text of 981 P.2d 872 (Cle Elum Bowl, Inc. v. NORTH PACIFIC INS.) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cle Elum Bowl, Inc. v. NORTH PACIFIC INS., 981 P.2d 872 (Wash. Ct. App. 1999).

Opinion

981 P.2d 872 (1999)
96 Wash.App. 698

CLE ELUM BOWL, INC. and Francis M. Tompkins, Appellants,
v.
NORTH PACIFIC INSURANCE COMPANY, INC., Respondent,
Farmin, Rothrock and Parrott, Inc., Defendant,
Robert T. Lanphere, Appellant.

No. 17487-5-III.

Court of Appeals of Washington, Division 3, Panel Three.

June 8, 1999.
Publication Ordered August 5, 1999.

*874 James M. Beecher, Hackett Beecher & Hart, Seattle, WA, and Hugh W. Stroh Jr., Attorney At Law, Cle Elum, WA, for Appellants.

Richard C. Feltman, Feltman Gebhardt Eymann & Jones PS, Spokane, WA, for Respondent.

*873 SCHULTHEIS, C.J.

Cle Elum Bowl, Inc., leased a building from Robert and Sena Lanphere and opened a bowling alley. Pursuant to its lease agreement, Cle Elum bought general liability insurance for its business from North Pacific Insurance Company. Cle Elum also promised to remove ice and snow from the building. When the bowling alley roof collapsed due to a heavy accumulation of snow, Mr. Lanphere sued Cle Elum. North Pacific denied coverage under the liability policy and refused to defend against the claim. Cle Elum's suit against North Pacific for coverage was dismissed on summary judgment and it and third party defendant Mr. Lanphere now appeal, contending (1) the collapse of the roof was an "occurrence" triggering liability; (2) an exclusion for rented property is trumped by a provision that provides coverage for claims arising from a contract for the lease of premises; (3) the director of Cle Elum is covered by the policy; and (4) the claim is also covered under personal injury liability (citing Kitsap County v. Allstate Ins. Co., 136 Wash.2d 567, 964 P.2d 1173 (1998)). We affirm the summary judgment.

FACTS

Under the terms of the bowling alley lease entered in May 1993, Cle Elum agreed to carry liability insurance for the premises in amounts of not less than $500,000 per person per occurrence and $1,000,000 for personal injury or death. The Lanpheres were to be named as additional insureds. Cle Elum assumed responsibility under the lease for removing snow and ice from the building, while the Lanpheres agreed to maintain the exterior roof and structural integrity of the building. The lease provided that the Lanpheres would not be liable for any damage sustained by Cle Elum or others due to defects in the premises unless caused by the Lanpheres' own inadvertence or neglect. Finally, each party agreed to indemnify and hold harmless the other from all claims arising out of loss, damage or injury to persons or property resulting from the other's acts of neglect.

Pursuant to the lease agreement, Cle Elum purchased a commercial general liability policy through North Pacific. Under the terms of the policy, North Pacific agreed to pay for the sums Cle Elum becomes legally obligated to pay as damages due to bodily injury or property damage caused by an "occurrence." "Occurrence" is defined by the policy as an accident, including continuous or repeated exposure to substantially the same general harmful conditions. Various exclusions are applicable here. For one, the policy does not cover bodily injury or property damage expected or intended from the standpoint of the insured. It also does not apply to "contractual liability," that is, bodily injury or property damage for which Cle Elum is obligated to pay by reason of a contract, except for liability assumed in an "insured contract." One of the policy's definitions of an insured contract is a "contract for a lease of premises." The policy also excludes coverage for damage to property that is owned, rented or occupied by the insured.

In December 1996, a snowstorm deposited several feet of snow in the Kittitas Valley and the roof of the building leased by Cle Elum collapsed. Mr. Lanphere sued Cle *875 Elum and Francis Tompkins, director, officer and stockholder of Cle Elum, seeking damages for breach of contract and negligence. When North Pacific denied coverage and refused to defend against the lawsuit, Cle Elum filed a petition for declaratory judgment in September 1997. The petition argued North Pacific breached the insurance contract and violated the Consumer Protection Act. North Pacific's answer included a counterclaim and third party complaint alleging the damages were not caused by an "occurrence" and coverage was denied for damages to property rented by the insured. Mr. Lanphere and the Washington insurance broker who procured insurance for Cle Elum were added as third party defendants.

Mr. Lanphere moved for summary judgment to establish policy coverage for the roof's collapse. In response, North Pacific filed a cross-motion for summary judgment, contending the policy did not provide coverage for what was essentially a casualty loss claim. The trial court, treating Cle Elum's motion for declaratory judgment as a motion for summary judgment, issued a memorandum opinion and judgment ruling the policy does not provide coverage for the roof collapse. Summary judgment was entered for North Pacific, dismissing the action with prejudice. This appeal followed.

COMMERCIAL GENERAL LIABILITY

Mr. Lanphere contends the trial court erred in concluding the collapse of the roof is not covered by the North Pacific commercial general liability policy. He assigns error to the court's findings that (1) the collapse of the roof was not an "occurrence" as contemplated in the policy; (2) the exclusion for damage to property rented by the insured controls over a general exception to the exclusion for liability assumed in a lease; and (3) Cle Elum did not assume liability in the lease for damage to the premises.

Where, as here, no facts are in dispute, we review summary judgments regarding insurance coverage de novo. Hillhaven Properties Ltd. v. Sellen Constr. Co., 133 Wash.2d 751, 757, 948 P.2d 796 (1997). The interpretation of an insurance contract is a question of law. Kitsap County, 136 Wash.2d at 575, 964 P.2d 1173. We construe the policy as a whole, giving it a fair and sensible construction that would be understood by the average person. Id.; American Star Ins. Co. v. Grice, 121 Wash.2d 869, 874, 854 P.2d 622 (1993), supplemented by 123 Wash.2d 131, 865 P.2d 507, 44 A.L.R.5th 905 (1994). At the same time, we do not allow an insured's expectations to override the plain language of the contract. Cook v. Evanson, 83 Wash.App. 149, 155, 920 P.2d 1223 (1996), review denied, 131 Wash.2d 1016, 936 P.2d 416 (1997). If the policy language is fairly susceptible to two different interpretations, we attempt to determine the parties' intent by examining extrinsic evidence. American Star, 121 Wash.2d at 874, 854 P.2d 622. Any ambiguity that remains will be construed against the insurer, especially if the ambiguity is in an exclusionary clause that seeks to limit policy coverage. Id.

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Bluebook (online)
981 P.2d 872, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cle-elum-bowl-inc-v-north-pacific-ins-washctapp-1999.