Ellis Court Apartments Limited Partnership v. State Farm Fire & Cas. Co.

72 P.3d 1086
CourtCourt of Appeals of Washington
DecidedJuly 18, 2003
Docket49644-1-I
StatusPublished
Cited by10 cases

This text of 72 P.3d 1086 (Ellis Court Apartments Limited Partnership v. State Farm Fire & Cas. 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
Ellis Court Apartments Limited Partnership v. State Farm Fire & Cas. Co., 72 P.3d 1086 (Wash. Ct. App. 2003).

Opinion

72 P.3d 1086 (2003)

ELLIS COURT APARTMENTS LIMITED PARTNERSHIP, a Washington Limited Partnership, By and Through WOODSIDE CORPORATION, a Washington corporation, its general partner, Respondent,
v.
STATE FARM FIRE AND CASUALTY COMPANY, a foreign insurance company, Appellant.

No. 49644-1-I.

Court of Appeals of Washington, Division 1.

June 12, 2003.
Publication Ordered July 18, 2003.

*1087 Pamela Okano, Timothy Whitters, Seattle, WA, for Appellant.

Kim Stephens, John Zahner, Seattle, WA, for Respondent.

*1088 Todd Christopherson, Seattle, WA, for Amicus.

APPELWICK, J.

A condominium sustained substantial structural impairment as the result of water damage. The owners filed suit when the insurer denied their claim. The trial court rejected the insurer's request that the court use the manifestation trigger rule to determine coverage, and granted the insured summary judgment on the insurer's other defenses to coverage. The insurer appeals. We affirm.

FACTS

Ellis Court Apartments LP (Ellis Court) held annual insurance policies with State Farm Insurance Company for its 58-unit apartment building beginning July 14, 1993, and running through September 1, 1999. Following that period, Ellis Court was insured by Greenwich Insurance Company, not a party to this suit.[1] The State Farm policies covered "loss commencing during the policy period." Although the policy excluded continuous or repeated seepage or leakage and collapse, it covered collapse caused by hidden decay under an extension of coverage for collapse.[2] Covered losses included "accidental direct physical loss to covered property involving collapse" caused by hidden decay.

In early 1993, Ellis Court hired Housing Resources Group (HRG) to manage the building. In 1993, HRG hired a contractor to repair the stucco. Following those repairs, a structural engineer reviewed the repairs and stated that the structural integrity of the building was intact and the useful life of the building should be restored. On March 30, 1999, after inspecting the building, a building consultant notified HRG that "[s]ubstantial impairment and failure of structural and architectural details from water intrusion is occurring." Repairs to Ellis Court, which began in August 2000, have been completed.

Ellis Court submitted a claim in May 2000. State Farm rejected Ellis Court's claim, responding, "The date of loss is the date you were aware of damage from decay such that a claim was or should have been submitted." Ellis Court sued State Farm for a declaration of coverage and recovery from damages. State Farm counterclaimed for a declaration of no coverage. Ellis Court moved for partial summary judgment on the issue of what trigger applies to first-party collapse caused by hidden decay. The trial court granted Ellis Court's motion, finding:

State Farm's Apartment Policy is an "occurrence" policy and loss involving collapse caused by hidden decay is a covered peril when the loss occurs during the policy period, even if the insured discovers the loss after the policy expires.

Ellis Court then moved for a second partial summary judgment on State Farm's other defenses. The trial court granted this motion, finding:

[T]he decay that was the cause of the substantial structural impairment was "hidden," as a matter of law. Accordingly, State Farm's two-year suit limitation affirmative defense is stricken, as well as the known loss defense.

The court also found that as a matter of law, State Farm could not allocate to Ellis Court any portion of the collapse damages. Finally, it found State Farm liable for reasonable attorney fees, expert fees and costs incurred by Ellis Court. The parties thereafter stipulated to damages.

State Farm appeals the first summary judgment order rejecting the manifestation trigger, and the second partial summary judgment order except to the extent it struck State Farm's suit limitation defense.

*1089 ANALYSIS

I. Standard of Review

"[S]ummary judgment may not be granted unless there is no genuine issue as to material facts." Hillhaven Prop., Ltd. v. Sellen Constr. Co., 133 Wash.2d 751, 757, 948 P.2d 796 (1997). "In reviewing a summary judgment order, this court conducts the same inquiry as the trial court." Mercer Place Condo. Ass'n v. State Farm Fire & Cas. Co., 104 Wash.App. 597, 601, 17 P.3d 626 (2000), review denied, 143 Wash.2d 1023, 25 P.3d 1020 (2001). "The Court must consider the facts and all reasonable inferences from those facts in the light most favorable to the nonmoving party." Hillhaven, 133 Wash.2d at 757-58, 948 P.2d 796. "Construction of a contractual insurance policy provision is a question of law and therefore subject to de novo review." Mercer Place, 104 Wash.App. at 601, 17 P.3d 626 (citing Queen City Farms, Inc. v. Central Nat'l Ins. Co., 64 Wash.App. 838, 853, 827 P.2d 1024 (1992), aff'd, 126 Wash.2d 50, 882 P.2d 703 (1994).

II. Manifestation Trigger

The manifestation trigger theory "fixes liability for first party property losses solely on the insurer whose policy was in force at the time the progressive damage became appreciable or `manifest.'" Prudential-LMI Ins. v. Superior Court, 51 Cal.3d 674, 694, 274 Cal.Rptr. 387, 798 P.2d 1230 (1990) Thus, it holds that collapse loss "occurs" for the purposes of insurance coverage at the time the insured discovers the damage. State Farm urges the court to adopt this theory. State Farm argues that Ellis Court's policy should be interpreted such that there is no coverage because the collapse manifested itself after Ellis Court's policy expired. Ellis Court contends that the language of the policy precludes the use of a manifestation trigger in this case. Moreover, Ellis Court maintains, Washington State has already adopted the "injury-in-fact" trigger of coverage.

State Farm relies upon a California case, Prudential-LMI Ins. v. Superior Court, 51 Cal.3d 674, 274 Cal.Rptr. 387, 798 P.2d 1230 (1990), to support its policy argument that the court should adopt a manifestation rule. In Prudential-LMI, the insured discovered an extensive crack in the foundation and floor slab of the insured apartment building in November 1985. Prudential-LMI, 51 Cal.3d at 680, 274 Cal.Rptr. 387, 798 P.2d 1230. Prudential-LMI had insured the building between 1977 and 1980. Prudential-LMI, 51 Cal.3d at 679, 274 Cal.Rptr. 387,

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