Diamaco, Inc. v. Aetna Cas. & Sur. Co.

983 P.2d 707
CourtCourt of Appeals of Washington
DecidedOctober 12, 1999
Docket42988-4-I
StatusPublished
Cited by39 cases

This text of 983 P.2d 707 (Diamaco, Inc. v. Aetna Cas. & Sur. Co.) 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
Diamaco, Inc. v. Aetna Cas. & Sur. Co., 983 P.2d 707 (Wash. Ct. App. 1999).

Opinion

983 P.2d 707 (1999)
97 Wash.App. 335

DIAMACO, INC., Appellant,
v.
AETNA CASUALTY & SURETY COMPANY, a foreign corporation, Respondent,
Ram, Inc., a Washington corporation; and City of Seattle, a municipality, Defendants.

No. 42988-4-I.

Court of Appeals of Washington, Division 1.

September 7, 1999.
As Amended on Grant of Reconsideration October 12, 1999.

*708 James Paul Wagner & A. Richard Dykstra, Seattle, for Appellant.

John Hitchcock Parnass & Thomas Stephens James, Seattle, for Respondent.

COX, J.

At issue in this appeal is whether Diamaco Inc.'s umbrella insurance policies issued by Travelers Casualty and Surety Company (formerly known as Aetna Casualty and Surety Company) covered the City of Seattle's claims against Diamaco. The claims were for property damage incurred during a construction project that Diamaco performed under a contract with the City. Because the trial court correctly determined that there was no coverage under the policies, we affirm.

In July 1994, the City of Seattle awarded Diamaco a $1.4 million contract to construct several seismic retrofit systems for the Fauntleroy expressway. During construction in January 1995, City inspectors discovered defects in Diamaco's work. Eventually, the City determined that defective epoxy likely affected two portions of Diamaco's work on the retrofit, crossbeam blocks, and seat extenders. Because of the failure of the defective epoxy, the crossbeam blocks installed by or for Diamaco sustained physical damage in the form of cracking and spalling. Accordingly, the City directed Diamaco to replace the structures containing the defective epoxy. Diamaco complied. But the repair of the defective work was not completed within the time limits specified in the contract. Based on this default, the City sought liquidated damages and other expenses for Diamaco's failure to perform.

Diamaco commenced this declaratory judgment action to establish that the City's claims are covered under the comprehensive general liability insurance policies issued by Travelers. Based on the pleadings of Diamaco and Travelers, a record of stipulated facts, and briefing by the parties, the court entered findings of fact and conclusions of law. The court first concluded that coverage under the primary insurance policies was barred by a policy exclusion. The court further concluded that coverage under the umbrella policies was also barred by an exclusion.

Diamaco appeals. Travelers cross-appeals.

*709 The proper framework for our analysis begins with the basic proposition that the determination of coverage is a two-step process.[1] The insured must first establish that the loss falls within the "scope of the policy's insured losses."[2] Then, to avoid responsibility for the loss, the insurer must show that the loss is excluded by specific language in the policy.[3]

In its cross-appeal, Travelers claims that the trial court erred by concluding that Diamaco met its threshold burden of establishing that the "property damage" here was within the insuring clause of the policies. Conversely, Diamaco contends that the claim is within the insuring clause and that no exclusion applies. Neither party is entirely correct.

Interpreting an insurance contract is a question of law, reviewed de novo.[4] Insurance contracts should be interpreted as an average insurance purchaser would understand them, giving undefined terms in these contracts their "`"plain, ordinary, and popular"'" meanings.[5] Ambiguities in the insurance policy are strictly construed against the insurer.[6]

I. Insuring Clause

Travelers argues that Diamaco's claim was not eligible for coverage as "property damage" because there was no damage to the property of others, only to the property of the insured. We reject this argument.

The primary policies state:

We will pay those sums that [Diamaco] becomes legally obligated to pay as damages because of "bodily injury" or "property damage" to which this insurance applies.

Property damage is defined as:

Physical injury to tangible property, including all resulting loss of use of that property..... or

Loss of use of tangible property that is not physically injured.

The plain language of the policies supports the view that the insuring clause covers a broad scope of property damage, both in terms of whose property is damaged and the character of the damage. The policy language, fairly read, does not support Travelers' contention that the term "property damage" is limited to "property of another."

Travelers claims that Weedo v. Stone-E-Brick, Inc.[7] is the "seminal case in this field cogently explain[ing] why CGL [comprehensive general liability] policies do not extend coverage to the defective work of a construction contractor." But Weedo does not stand for this expansive proposition. Instead, the court there explained that the limitations on coverage arose from the policy's stated exclusions, not the insuring clause:

The qualifying phrase, "to which this insurance applies" underscores the basic notion that the premium paid by the insured does not buy coverage for all property damage but only for that type of damage provided for in the policy. The limitations on coverage are set forth in the exclusion clauses of the policy, whose function it is to restrict and shape the coverage otherwise afforded.[[8]]

Thus, the court there denied coverage only because one of the policy's enumerated exclusions applied. The court's reasoning was not based on the theory that the insured's defective workmanship did not constitute "property *710 damage" within the insuring clause. Rather, it was based on a plain reading of the policy language.

Travelers also incorrectly claims that Westman Indus. Co. v. Hartford Ins. Group[9] "expressly invoked Weedo for the same proposition that CGL policies are not intended to provide coverage for the cost of repairing construction defects." Instead, Westman actually concluded that a policy exclusion applied to bar coverage. Whether the insured had established "property damage" within the meaning of the insuring clause was not at issue.

Travelers' reliance on Yakima Cement Prods. Co. v. Great American Ins. Co.[10] is also misplaced. There, our Supreme Court considered whether "property damage," within the meaning of the insuring clause, occurred when defective concrete panels were incorporated into an operations building that the Army contracted to have constructed. Our Supreme Court concluded that there was no property damage because there was no evidence that the incorporation of the defective panels diminished the value of the building.[11]

Yakima does not require us to abandon the principle of reading the insuring and exclusion clauses, as written, to determine if coverage exists. First, our Supreme Court there did not expressly state that "property damage" under CGL policies is always limited to the property of another. If the opinion had so held, then we would have expected to see a discussion of the rationale behind such a conclusion.[12] There is no such discussion in the opinion. Second, the court did not set forth any reasons for how such a limitation on coverage could be reconciled with the plain language of the insuring clause of the type of CGL policies at issue here.

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Bluebook (online)
983 P.2d 707, Counsel Stack Legal Research, https://law.counselstack.com/opinion/diamaco-inc-v-aetna-cas-sur-co-washctapp-1999.