Northwest Bedding Co. v. National Fire Insurance

225 P.3d 484, 154 Wash. App. 787
CourtCourt of Appeals of Washington
DecidedFebruary 11, 2010
DocketNo. 28044-6-III
StatusPublished
Cited by4 cases

This text of 225 P.3d 484 (Northwest Bedding Co. v. National Fire Insurance) 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
Northwest Bedding Co. v. National Fire Insurance, 225 P.3d 484, 154 Wash. App. 787 (Wash. Ct. App. 2010).

Opinion

Sweeney, J.

¶1 This is an insurance coverage dispute between a commercial business and an insurance company. The insurance company refused to cover water damage that followed an unusually fast snowmelt that overwhelmed man-made ditches and flooded the business’s property. The trial judge agreed with the insurance company that the loss resulted from surface water and that surface water was an excluded peril under the terms of the insurance policy. We agree and affirm the summary dismissal.

FACTS

¶2 National Fire Insurance Company of Hartford is wholly owned by CNA Foundation Corporation (collectively [790]*790National Fire). It insured Northwest Bedding Co. under an all-risk commercial property coverage and commercial general liability insurance policy. The policy insured Northwest Bedding’s buildings and property in Spokane, Washington, and covered “direct physical loss of or damage to Covered Property... caused by or resulting from any Covered Cause of Loss.” Clerk’s Papers (CP) at 60, 61. “Covered Property” includes “Business Personal Property,” which includes furniture, fixtures, equipment, “Stock” and other personal property, labor, and services furnished or arranged by the business on the premises. CP at 61.

¶3 The Spokane area experienced heavy snowfall during the winter of 2007-08. Toward the end of February, the Washington State Department of Transportation and others diverted snowmelt through trenches in the vicinity of Northwest Bedding. Several drainage ditches ran through the area around Northwest Bedding. The water overflowed the trenches onto Northwest Bedding’s property and building, inundated Northwest Bedding’s building, and damaged both the building and property.

¶4 National Fire concluded that the loss was the result of surface water and, therefore, excluded from coverage. And it denied coverage.

¶5 Northwest Bedding sued National Fire for damages and a judicial declaration that the loss was covered. The parties agreed that there were no issues of material fact (and that is also apparent from our reading of the record) and filed cross motions for summary judgment. The trial court agreed with National Fire and granted its motion for summary judgment and denied Northwest Bedding’s.

DISCUSSION

¶6 We review a trial court’s summary judgment order de novo; we engage in the same review as the trial court and view the evidence in the light most favorable to the nonmoving party. Marincovich v. Tarabochia, 114 Wn.2d 271, 274, 787 P.2d 562 (1990). The interpretation of [791]*791insurance contracts also presents a question of law that we review de novo. Quadrant Corp. v. Am. States Ins. Co., 154 Wn.2d 165, 171, 110 P.3d 733 (2005).

¶7 We apply a number of canons of construction when passing on the meaning of an insurance policy. We strictly construe an ambiguous exclusionary clause against the insurer. Rodriguez v. Williams, 107 Wn.2d 381, 384, 729 P.2d 627 (1986); Kish v. Ins. Co. of N. Am., 125 Wn.2d 164, 883 P.2d 308 (1994). A provision of the policy is ambiguous if “ ‘it is fairly susceptible to two different interpretations, both of which are reasonable.’ ” Lynott v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 123 Wn.2d 678, 690, 871 P.2d 146 (1994) (quoting McDonald v. State Farm Fire & Cas. Co., 119 Wn.2d 724, 733, 837 P.2d 1000 (1992)).

¶8 An “all-risk” policy covers any peril that is not specifically excluded in the policy. Findlay v. United Pac. Ins. Co., 129 Wn.2d 368, 378, 917 P.2d 116 (1996). But even all-risk policies may exclude certain perils; we will interpret this policy in a way that gives effect to each provision. McDonald, 119 Wn.2d at 734. An insured contesting the denial of coverage must first show that the loss falls within the scope of the policy’s covered losses. Diamaco, Inc. v. Aetna Cas. & Sur. Co., 97 Wn. App. 335, 337, 983 P.2d 707 (1999). The insurer then must show that the claim of loss is excluded. Queen City Farms, Inc. v. Cent. Nat’l Ins. Co. of Omaha, 126 Wn.2d 50, 71, 882 P.2d 703, 891 P.2d 718 (1994).

¶9 Northwest Bedding contends that the trial judge erred when she concluded that the loss here resulted from an excluded peril — surface water — because the loss resulted instead from third parties channeling water onto Northwest Bedding’s property. National Fire responds that the loss was clearly the result — directly or indirectly — of surface water caused by an unusually fast snowmelt. And the fact that water may have been channeled onto Northwest Bedding’s property by ditches and pipes does not change the fact that the loss was the result of surface water. Moreover, National Fire argues that any claim that the loss [792]*792was due to diversion, rather than surface water, became untenable when the water here overflowed the ditches and returned to its state as “surface water.”

f 10 The policy does not define the two excluded water perils at issue here: damage caused by flooding or surface water. Undefined terms in insurance policies should be given their plain, ordinary, and popular meaning. Boeing Co. v. Aetna Cas. & Sur. Co., 113 Wn.2d 869, 877, 784 P.2d 507 (1990). The language in standard form policies is interpreted in accord with the understanding of the average purchaser even if the insured is a more sophisticated business actor. Id. at 882-83.

¶11 Washington courts have characterized “surface water” as follows:

The chief characteristic of surface water is its inability to maintain its identity and existence as a body of water. It is thus distinguished from water flowing in its natural course or collected into and forming a definite and identifiable body, such as a lake or pond.

Halverson v. Skagit County, 139 Wn.2d 1, 15, 983 P.2d 643 (1999).

¶12 The parties disagree about the location of the ditch and whether its location bears on the character of the water inundating Northwest Bedding’s building. Northwest Bedding describes the ditch as “butt[ing]” onto the Northwest Bedding premises “in an almost perpendicular orientation.” CP at 157. National Fire describes the ditch as “bordering Northwest Bedding’s property.” Br. of Resp’t at 11. Northwest Bedding relies on a Colorado case, Heller v. Fire Ins. Exch., 800 P.2d 1006 (Colo. 1990), to argue that this distinction matters. In Heller, the court found that water damage

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225 P.3d 484, 154 Wash. App. 787, Counsel Stack Legal Research, https://law.counselstack.com/opinion/northwest-bedding-co-v-national-fire-insurance-washctapp-2010.