Koory v. Western Casualty & Surety Co.

737 P.2d 388, 153 Ariz. 412, 1987 Ariz. LEXIS 168
CourtArizona Supreme Court
DecidedMay 26, 1987
DocketCV-86-0436-PR
StatusPublished
Cited by6 cases

This text of 737 P.2d 388 (Koory v. Western Casualty & Surety Co.) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Koory v. Western Casualty & Surety Co., 737 P.2d 388, 153 Ariz. 412, 1987 Ariz. LEXIS 168 (Ark. 1987).

Opinions

FELDMAN, Vice Chief Justice.

Fred Koory, Jr. (Koory) purchased general liability, fire, and named peril insurance coverage for his warehouse from Western Casualty and Surety Company (Western). Koory’s warehouse was severely damaged when the roof collapsed during a March 1983 storm. This lawsuit ensued when Western denied Koory’s claim under the “windstorm” section of his policy.

The trial court granted summary judgment for Western and the court of appeals affirmed. Koory v. Western Casualty and Surety Co., 153 Ariz. 408, 737 P.2d 384 (Ct.App.1986). Both courts relied on St. Paul Fire and Marine Insurance Co. v. Central Park Mobile Homes, 22 Ariz. App. 557, 529 P.2d 711 (App.1974) for the proposition that the wind must be the sole cause of loss. We granted review pursuant to Rule 23(c), Ariz.R.Civ.App.P., 17A A.R.S. (Supp.1986), to determine: (1) whether the trial court and court of appeals misapplied St. Paul, (2) whether there are factual issues which preclude summary judgment; and (3) whether the “reasonable expectations” doctrine announced in Darner Motor Sales, Inc. v. Universal Underwriters Insurance Co., 140 Ariz. 383, 682 P.2d 388 (1984) is applicable to this case. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. § 12-120.24.

I. FACTS AND ISSUES

Koory and Western agree that Koory’s policy covered “all direct loss[es] caused by ... [wjindstorm” and that the wind contributed, in some measure, to the collapse of Koory's warehouse roof. They also agree that the wind was not the sole cause of the roof’s collapse. Various other factors, including the weight of pooling water and the roof’s age and condition, also contributed to the collapse.

Koory and Western disagree about whether the wind “caused” the warehouse roof to collapse. Western’s expert says the wind played an insignificant role; Koory’s expert says that but for the wind, the roof would not have collapsed.

Despite the parties’ factual dispute, the trial court granted summary judgment for Western. The court relied on St. Paul for the proposition that windstorm insurance covers an insured’s loss only if (1) the damage to the insured property is caused solely by the unaided force of the wind, and (2) the insured property is in “reasonable condition.” These prerequisites were lacking in this case, the trial court reasoned, because “the collapse of the roof was due to a combination of factors, and thus not due to the ‘unaided’ force of the wind____”

The court of appeals also framed the issue as “whether the loss resulted from the wind alone,” 153 Ariz. at 410, 737 P.2d at 386, and therefore affirmed the trial court’s grant of summary judgment. The court’s opinion purports not to reach the reasonable condition issue mentioned by the trial court. Id.

II. DISCUSSION

Contrary to the trial court’s and the court of appeals’ analysis, the scope of “windstorm” coverage does not depend on whether the insured’s loss was caused “solely” by the “unaided” force of the wind or on whether the insured property was in “reasonable condition.” Koory’s policy, the parties’ expectations, and St. Paul, properly understood, demonstrate that although the force of the wind and the condition of the insured property are relevant to a proper definition of windstorm, they do [414]*414not limit coverage in the ways suggested by the trial court and the court of appeals.

A. The Policy Language

The plain language of Koory’s policy requires neither that the wind be the sole cause of loss, nor that the insured building be in “reasonable condition.” Koory purchased insurance for his warehouse, presumably in its then-present condition, against “all direct loss caused by ... [w]indstorm.” In this context, “direct” usually “means proximate or immediate.” 5 J. APPLEMAN, INSURANCE LAW AND PRACTICE § 3142, at 445 (1970). In Arizona, as in most jurisdictions, an act or force need not be the sole cause of damage for causation to exist. Ontiveros v. Borak, 136 Ariz. 500, 505, 667 P.2d 200, 205 (1983); McDowell v. Davis, 104 Ariz. 69, 72, 448 P.2d 869, 872 (1968). Absent limiting language in the policy, therefore, Koory is entitled to recover if a “windstorm” was the proximate cause of his loss, even “though there may have been other contributing causes.” 5 J. APPLEMAN, supra § 3142, at 445; see also post section II-C-1.

B. Darner Motors

Koory argues that he relied on the plain language of the policy and that reading new exclusions into the policy violates the “reasonable expectations” principle announced in Darner, supra. In Darner, we refused to give effect to boilerplate contract provisions that are inconsistent with the parties’ intent as expressed in their negotiations, prior understandings, and conduct.

Unlike Darner, this case does not present a situation where the insured’s reasonable expectations have been undercut by the boilerplate provisions of the policy. In this case, there are no contrary provisions in the policy. Darner, however, is not limited to situations where the parties’ negotiations or conduct undercut boilerplate provisions. The principles articulated in Darner do not permit the insurer to undercut the “dickered deal.” A fortiori, those principles do not permit courts to imply restrictive conditions contrary to the plain language of the policy. Having purchased “windstorm” coverage, Koory is entitled to exactly that.

The opposite side of the Darner coin, however, is that Western sold Koory only windstorm coverage. Western did not insure every loss caused by the wind; it insured only those damages caused by “windstorm,” a term the policy leaves undefined. Nothing in the transaction itself nor in Western’s conduct gave rise to any different reasonable expectation by the insured. Thus, the real issue in this case, as in St. Paul, is what constitutes a “windstorm.”

C. St. Paul

In St. Paul, the insurer agreed to provide windstorm coverage for a recreation building during the course of its construction. On the day of the accident, a work crew had erected fifty prefabricated roof trusses, with a 42-foot span, across the building. Before leaving, the crew temporarily braced the trusses by nailing a ten-foot board on eight-foot centers across the north side of the trusses. The trusses collapsed while the wind was blowing between eight and twelve miles per hour.

The court of appeals affirmed the trial court’s finding that a windstorm caused the trusses to collapse. In deciding what “windstorm” means when it is undefined by the insured’s policy, the court noted that some early cases had held that “a windstorm must be something of a violent and unusual nature amounting to an ‘outburst of tumultuous force.’ ” 22 Ariz.App.

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Bluebook (online)
737 P.2d 388, 153 Ariz. 412, 1987 Ariz. LEXIS 168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/koory-v-western-casualty-surety-co-ariz-1987.