Fontana Builders, Inc. v. Assurance Company of America

2016 WI 52, 882 N.W.2d 398, 369 Wis. 2d 495, 2016 Wisc. LEXIS 159
CourtWisconsin Supreme Court
DecidedJune 29, 2016
Docket2014AP000821
StatusPublished
Cited by21 cases

This text of 2016 WI 52 (Fontana Builders, Inc. v. Assurance Company of America) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fontana Builders, Inc. v. Assurance Company of America, 2016 WI 52, 882 N.W.2d 398, 369 Wis. 2d 495, 2016 Wisc. LEXIS 159 (Wis. 2016).

Opinions

[500]*500DAVID T. PROSSER, J.

¶ 1. This is a review of an unpublished decision of the court of appeals1 affirming judgments entered in favor of Assurance Company of America2 (Assurance) against its insured, Fontana Builders, Inc.3 (Fontana), and Fontana's lender, An-chorBank, FSB (AnchorBank).

¶ 2. The case involves a complicated insurance coverage dispute arising out of a 2007 fire that destroyed portions of a high-end custom home that was still under construction in Lake Geneva. The fire caused major damage not only to the home but also to the personal property of the home's occupants, who were the presumptive purchasers of the home upon its completion.

¶ 3. Both the construction contractor, Fontana, and the occupants/presumptive purchasers, James and Suzy Accola (the Accolas), had separate insurance policies. After the fire, the Accolas settled with Chubb Insurance Co. (Chubb), the insurer that provided their homeowner's policy, and received a substantial payment. Assurance then denied all coverage to Fontana for the fire, relying on the "permanent property insurance" condition in its builder's risk policy as grounds for the denial. Assurance's denial of coverage upset not only Fontana but also Fontana's mortgagee, Anchor-[501]*501Bank, and James Accola, Fontana's president and sole shareholder who had personally guaranteed Anchor-Bank's loan.

¶ 4. In this factually complicated case, there have been two jury trials and two appeals, although this is the first appeal to reach this court. The parties have raised numerous issues. Upon reflection, however, we see two fundamental questions presented to the court. First, is the interpretation of the "permanent property insurance" condition in the builder's risk policy a question of fact for a jury or a question of law for the court? Second, if the interpretation of the "permanent property insurance" condition is a question of law, did that condition terminate Fontana's coverage under the builder's risk policy?

¶ 5. We conclude that the court of appeals incorrectly determined that interpretation of Assurance's builder's risk policy was a question of fact for a jury in this case, and we reaffirm the general principle that interpretation of insurance contracts presents a question of law for the court. We further conclude that the homeowner's policy in this case did not "apply" so as to terminate Fontana's builder's risk policy because Fon-tana and the Accolas insured different interests in the property. Fontana had a reasonable expectation that coverage would persist under the builder's risk policy while construction continued and Fontana remained the owner of the property. Accordingly, we reverse the decision of the court of appeals and remand to the circuit court for the determination of damages.4

[502]*502I. FACTUAL BACKGROUND

A. Fontana's Construction Business

¶ 6. Fontana designed and built "spec" homes, speculative custom houses for which Fontana obtained financing and began construction before securing a buyer for the finished structure. When constructing a spec home, Fontana owned the house and was responsible for any mortgage until closing a sale to an eventual buyer. In the years preceding the fire, Fon-tana had built and sold 16 or 17 custom homes. At any given time, Fontana would normally have between one and three homes under construction.

¶ 7. James Accola was the president and sole shareholder of Fontana Builders, Inc. On three or four occasions, he and his wife, Suzy Accola, had purchased a completed home from Fontana and moved in with their three children. Before the fire damaged the Lake Geneva home, the Accolas intended to purchase the home after Fontana finished construction.

¶ 8. The home at issue, located at 1527 Muirfield Court, represented a substantial investment for Fon-tana. Nearly all of Fontana's assets were invested in the house, which the company planned to use to generate new opportunities for itself in the high-end housing market. The home was larger and included [503]*503more detailed interior work than any previous Fontana-built home. Accola testified at the second trial that he intended to use the home to "showcase" Fon-tana as "one of the premier builders in the Lake Geneva area." As the home's owner, Accola would have unfettered access to an example of Fontana's finished work when he courted prospective buyers. He had even arranged for a photo spread featuring the house in Trends, a nationally distributed magazine.

¶ 9. Fontana financed the project's construction through two mortgages with AnchorBank. The first mortgage, dated November 29, 2005, secured a $1,076 million loan. A subsequent mortgage, dated April 23, 2007, secured a $200,000 loan. Accola provided a personal guarantee on Fontana's loans and mortgages.

B. Fontana's Builder's Risk Coverage from Assurance

¶ 10. As a standard condition of making the loans, AnchorBank required Fontana to obtain builder's risk insurance covering the home during construction. Fontana purchased two policies from Assurance Company of America, which had provided builder's risk coverage for previous Fontana projects. Initially, Fontana purchased a new policy providing up to $800,000 in coverage for the Lake Geneva property. Effective for one year from October 19, 2005, the policy corresponded to the November 2005 loan from Anchor-Bank.

¶ 11. Fontana acquired the Assurance policy at issue in this case when it sought the second Anchor-Bank loan to cover increased project costs during construction. Because the previous policy had lapsed in October 2006, Assurance issued a new builder's risk policy providing $1,495 million in coverage, effective [504]*504for one year from April 19, 2007.5 The policy listed "Fontana Builders, Inc." as the named insured.

f 12. Under the builder's risk policy, Assurance agreed to "pay for direct physical loss to Covered Property from any Covered Cause of Loss described in [the] Coverage Form." Covered Property included "[property which has been installed, or is to be installed in any commercial structure and/or any single family dwelling, private garage, or other structures that will be used to service the single family dwelling." However, Covered Property did not include existing [505]*505inventory, which the policy defined as "buildings or structures where construction was started or completed prior to the inception date of [the] policy." The policy defined "Zoss" as "accidental loss and accidental damage," and "Covered Cause of Loss [meant] risk of direct physical loss to Covered Property, except those causes of loss listed in the Exclusions." The exclusions did not preclude coverage for fire damage.

¶ 13. A separate section of the policy specified additional conditions for coverage:

3. WHEN COVERAGE BEGINS AND ENDS
We will cover risk of loss from the time when you are legally responsible for the Covered Property on or after the effective date of the policy if all other conditions are met. Coverage will end at the earliest of the following:
a. Once your interest in the Covered Property ceases;
b.

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Bluebook (online)
2016 WI 52, 882 N.W.2d 398, 369 Wis. 2d 495, 2016 Wisc. LEXIS 159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fontana-builders-inc-v-assurance-company-of-america-wis-2016.