Lake Chelan Shores v. St. Paul Fire

272 P.3d 249, 167 Wash. App. 28
CourtCourt of Appeals of Washington
DecidedMarch 12, 2012
Docket66636-3-I
StatusPublished
Cited by2 cases

This text of 272 P.3d 249 (Lake Chelan Shores v. St. Paul Fire) 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
Lake Chelan Shores v. St. Paul Fire, 272 P.3d 249, 167 Wash. App. 28 (Wash. Ct. App. 2012).

Opinion

272 P.3d 249 (2011)
167 Wn. App. 28

LAKE CHELAN SHORES HOMEOWNERS ASSOCIATION, a Washington non-profit entity, Appellant,
v.
ST. PAUL FIRE & MARINE INSURANCE COMPANY, a foreign corporation, Respondent, and
Northern Insurance Company of New York, a foreign corporation, Defendant.

No. 66636-3-I.

Court of Appeals of Washington, Division 1.

November 28, 2011.
Publication Ordered March 12, 2012.

*250 John T. Petrie, Robert J. Curran, Susan R. Fox, Ryan Swanson & Cleveland, Seattle, WA, for Appellant.

Phillip J. Skuda, James T. Derrig, Seattle, WA, for Respondent.

SPEARMAN, J.

¶ 1 The main issue in this insurance coverage case is whether the method by which expert witnesses for Lake Chelan Shores condominiums homeowners association ("LCS") established that "collapse" conditions occurred years earlier was generally accepted within the scientific community. In its summary judgment motion, St. Paul Fire & Marine Insurance Company ("St. Paul") set forth evidence indicating the methodology of LCS's experts was not generally accepted. The burden then shifted to LCS to come forward with evidence the methodology was generally accepted. Because LCS provided no such evidence, the trial court properly concluded there was no admissible evidence of "collapse," a prerequisite for coverage under the policy. We affirm.

FACTS

¶ 2 St. Paul insured the premises of LCS under three annual policies, effective from August 3, 1996 to August 3, 1999. Each of *251 those policies provided coverage for "collapse" that occurred during the policy period:

Collapse coverage. We'll insure covered property against the risk of direct physical loss or damage involving collapse of a building or any part of a building.

¶ 3 The collapse must be due to any of the following causes of loss:

...
• hidden decay;

The policies contained the following relevant exclusions from coverage:

Exclusions—Losses We Won't Cover
...
Collapse. We won't cover loss resulting from collapse other than that described in the collapse coverage under the Covered Causes Of Loss section.
...
Wear—tear—deterioration—animals.
We won't cover loss caused or made worse by:
• wear and tear;
• deterioration, mold, wet or dry rot, rust or corrosion including fungal or bacterial contamination; ...

¶ 4 The LCS condominiums were built between 1980 and 1994. LCS first discovered a problem with rot in mid-2006. LCS hired Olympic Associates, an architectural and engineering firm, to inspect and report on the problem. By April 2007, LCS had decided to contract for a repair project that would include removal and replacement of all siding. On July 11, 2007, LCS adopted a resolution for financing the project, and on July 27, 2007, it submitted design documents to the City of Chelan Building Department.

¶ 5 LCS tendered its claim to St. Paul on July 5, 2007. On July 23, a St. Paul property adjuster contacted counsel for LCS, and on July 26, the adjuster sent a letter to counsel asking for documents relating to the loss. Counsel for LCS did not respond to the request. On August 27, counsel for LSC sent a letter to St. Paul requesting reimbursement for $303,424 in investigation costs. Three days later, on August 30, 2007, LCS sued St. Paul for breach of contract, bad faith, and Consumer Protection Act (CPA) violations.

¶ 6 In July 2009, LCS disclosed its experts' opinions. On the basis of these opinions, St. Paul denied the claim and moved for partial summary judgment as to coverage. St. Paul argued there was no coverage, because LCS's experts had no generally accepted scientific basis on which to link the current building decay to a state of "collapse" during the St. Paul policy periods. In the alternative, St. Paul asked for a Frye[1] hearing on LCS's experts' methods. The trial court agreed with St. Paul, and granted the motion.

¶ 7 LCS then moved to compel discovery as to its remaining extra-contractual claims. St. Paul moved for summary judgment on the extra-contractual claims. LCS sought a CR 56(f) continuance. The trial court denied LCS's motion, and granted St. Paul's motion for summary judgment, dismissing the rest of the claims. LCS appeals.

DISCUSSION

Summary Judgment on Coverage Claims

¶ 8 The trial court granted St. Paul's motion for summary judgment on coverage. The court agreed that the opinions of LCS's experts that the condominiums were in "collapse" 10 years earlier was not based on any theory generally accepted in the scientific community. The trial court thus found LCS had failed to present evidence of coverage, and it granted the motion. For the reasons described herein, we agree with the trial court.

¶ 9 LCS offers multiple arguments as to why this was error, but those arguments rest upon two main, interconnected premises: (1) conflicting opinion testimony offered by opposing experts cannot be resolved at summary judgment and (2) the trial court essentially weighed evidence as if it was presiding over a Frye hearing as opposed to a summary judgment hearing. LCS is correct that disputed opinion testimony, offered by qualified experts, cannot be resolved at summary judgment. See Postema v. Pollution Control *252 Hearings Bd., 142 Wash.2d 68, 119-20, 11 P.3d 726 (2000). In its brief, LCS provides a list comparing and contrasting the expert deposition and declaration testimony of its experts versus St. Paul's expert.

¶ 10 But LCS misunderstands the nature of St. Paul's motion and the trial court's ruling. St. Paul's motion for partial summary judgment argued the undisputed evidence gathered during discovery showed that the scientific bases upon which the opinions of LCS's experts rested were not generally accepted within the scientific community. The motion also requested a Frye hearing in the event the court determined there was disputed evidence on the issue.

¶ 11 For expert testimony to be admissible, it first must satisfy the Frye standard and then must meet the other criteria in ER 702. See State v. Gregory, 158 Wash.2d 759, 829-30, 147 P.3d 1201 (2006). Under Frye, expert testimony is admissible where:

(1) the scientific theory or principle upon which the evidence is based has gained general acceptance in the relevant scientific community of which it is a part; and (2) there are generally accepted methods of applying the theory or principle in a manner capable of producing reliable results.

State v. Sipin, 130 Wash.App. 403, 414, 123 P.3d 862 (2005). Both the theory underlying the evidence and the methodology used to implement the theory must be generally accepted in the scientific community for evidence to be admissible under Frye. Gregory, 158 Wash.2d at 829, 147 P.3d 1201. When applying the Frye

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Related

State v. Martin
281 P.3d 315 (Court of Appeals of Washington, 2012)
Lake Chelan Shores Homeowners Ass'n v. St. Paul Fire & Marine Insurance
272 P.3d 249 (Court of Appeals of Washington, 2011)

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Bluebook (online)
272 P.3d 249, 167 Wash. App. 28, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lake-chelan-shores-v-st-paul-fire-washctapp-2012.