Fourth Street Place, LLC v. Travelers Indemnity Co.

270 P.3d 1235, 127 Nev. 957, 127 Nev. Adv. Rep. 86, 2011 Nev. LEXIS 114
CourtNevada Supreme Court
DecidedDecember 29, 2011
DocketNo. 54415
StatusPublished
Cited by28 cases

This text of 270 P.3d 1235 (Fourth Street Place, LLC v. Travelers Indemnity Co.) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fourth Street Place, LLC v. Travelers Indemnity Co., 270 P.3d 1235, 127 Nev. 957, 127 Nev. Adv. Rep. 86, 2011 Nev. LEXIS 114 (Neb. 2011).

Opinion

OPINION

By the Court,

Douglas, J.:

In this appeal, we review a district court summary judgment in favor of the insurer in an insurance coverage action. We conclude that the policy at issue does not provide coverage because the damage sustained did not result from a covered cause of loss. Further, while we adopt the doctrine of efficient proximate cause, we conclude that it does not apply in this case. Therefore, we affirm.

FACTS AND PROCEDURAL HISTORY

Appellant Fourth Street Place, LLC, owns an office building (the Building) located in Las Vegas, Nevada, and leases profes[960]*960sional office space to various tenants. Fourth Street purchased an “all-risks” insurance policy (the Policy) for the Building from respondent The Travelers Indemnity Company for the period of March 19, 2004, to March 19, 2005. An “all-risks” policy covers any and all risks except those explicitly limited or excluded by the terms of the policy. The Policy provided, in pertinent part, provisions as to “Covered Causes of Loss,” limitations regarding rain damage, and exclusions pertaining to faulty workmanship.

Fourth Street hired a general contractor to supervise the repair and renovation of the Building in November 2004. The general contractor subcontracted with Above It All Roofing to repair the roof. On Saturday, November 20, 2004, Above It All removed the waterproof membrane on the roof of the Building and prepared to replace the membrane the following week. That evening, Las Vegas received substantial rainfall that continued through the weekend. On Sunday, November 21, 2004, Above It All returned to cover the exposed portions of the roof with tarps to protect the Building, but wind later blew away the tarps, leaving the Building exposed to the rain.1 The Building suffered significant water damage to the ceilings, drywall, doors, windows, cabinetry, electrical and HVAC systems, carpeting, and other flooring. A majority of the Building’s tenants immediately vacated because the Building was uninhabitable.

The Monday after the storm, Fourth Street submitted an oral notice of claim to Travelers about the rain damage to the Building. Travelers inspected the Building and corresponded with several individuals from Fourth Street about the damage. On December 14, 2004, Travelers sent a letter to Fourth Street denying its claim after concluding that the damage to the Building did not result from a covered cause of loss. Thereafter, Fourth Street petitioned Travelers by letter to reconsider its denial of coverage. Travelers agreed to reconsider and referred the matter to its in-house coverage counsel. On March 15, 2005, Travelers reaffirmed by letter that it was denying coverage.

Seeking damages and declaratory relief, Fourth Street sued Travelers, among others, based on allegations that Travelers breached the insurance policy and denied coverage in bad faith. Travelers filed a motion for summary judgment, arguing that the damage to the Building did not result from a “Covered Cause of Loss.” Travelers noted that the Policy specifically precluded coverage for [961]*961damage resulting from rain unless the Building’s roof or walls were first damaged by wind or hail. Travelers argued that because the Building’s roof or walls were not damaged by wind or hail before it sustained rain damage, there was no coverage for damage to the Building, its contents, or resulting lost business income as a matter of law. Additionally, Travelers argued that because its denial of coverage was reasonable and there was no knowledge or reckless disregard of the lack of a reasonable basis for denying coverage, it was also entitled to summary judgment on the issue of bad faith.

Fourth Street opposed the motion and filed a countermotion for partial summary judgment on the issue of its entitlement to coverage. Fourth Street argued that the rain limitation should not preclude coverage because the tarps that Above It All used to temporarily cover the Building should be considered part of the roof; thus, when the wind blew away the tarps, the Building sustained actual damage to its roof by wind. Fourth Street also asked the court to apply the doctrine of efficient proximate cause, a rule that applies to find coverage if the “efficient proximate cause” of the damage at issue is a covered cause of loss under the Policy, even if an excluded cause of loss is a more immediate cause in the chain of causation. It argued that the efficient proximate cause of loss was Above It All’s failure to prevent rain from entering the Building while it renovated the roof, which, Fourth Street contended, was a covered cause of loss under the Policy. Fourth Street also preemptively argued that the Policy’s “faulty workmanship” exclusion should not apply because the term “workmanship” is ambiguous and, therefore, should be construed in its favor to only mean a flawed product.

Travelers responded by arguing that the doctrine of efficient proximate cause only applies when there are multiple causes of loss and at least one is a covered cause of loss; however, Travelers contends that is not the case here because Above It All’s failure to properly cover the exposed portions of the roof was not a covered cause of loss; it was excluded by the “faulty workmanship” exclusion.2 It additionally argued that the Policy made it clear that lost business income is covered only after there has been covered damage to insured property that results in a covered cause of loss.

After hearing oral argument, the district court entered its findings of fact, conclusions of law, and judgment granting Travelers’ motion for summary judgment and denying Fourth Street’s coun-termotion. It concluded that the Policy unambiguously excluded [962]*962from coverage the damage sustained to the Building. Specifically, it found: (1) the rain damage did not result from a “Covered Cause of Loss” because the Building did not first sustain actual damage to its roof or walls by wind or hail, as required by the Policy for coverage of damage caused by rain; (2) Fourth Street’s lost business income was not covered because it required a covered cause of loss, and there was none; (3) the “faulty workmanship” exclusion excluded coverage unless the faulty workmanship resulted in a covered cause of loss, and there was none; (4) the doctrine of efficient proximate cause did not apply because neither cause of loss — Above It All’s faulty workmanship and the rain— was a covered cause of loss; and (5) Travelers did not deny Fourth Street’s claim in bad faith.

Fourth Street filed a motion to amend both the findings of fact and the judgment. The district court granted the motion to amend the findings of fact3 and denied the motion to amend the judgment. Fourth Street timely filed this appeal.

DISCUSSION

This court reviews de novo a district court summary judgment and construction of a contract, without deference to the findings of the lower court. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005); Farmers Ins. Exch. v. Neal, 119 Nev. 62, 64, 64 P.3d 472, 473 (2003). Summary judgment is proper when, viewing the evidence in the light most favorable to the nonmoving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Continental Ins.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
270 P.3d 1235, 127 Nev. 957, 127 Nev. Adv. Rep. 86, 2011 Nev. LEXIS 114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fourth-street-place-llc-v-travelers-indemnity-co-nev-2011.