Schwindt v. Commonwealth Insurance

140 Wash. 2d 348
CourtWashington Supreme Court
DecidedApril 20, 2000
DocketNo. 67905-3
StatusPublished
Cited by16 cases

This text of 140 Wash. 2d 348 (Schwindt v. Commonwealth Insurance) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schwindt v. Commonwealth Insurance, 140 Wash. 2d 348 (Wash. 2000).

Opinion

Ireland, J.

A building contractor, through its assignee, claims that its breach of contract action against its insurance company did not accrue until the insurance company rejected its claim for coverage. We agree and reverse summary judgment.

FACTS

Pan Pacific Builders Ltd. (Pan Pacific) purchased a business risk insurance policy from Commonwealth Insurance Company (Commonwealth) to insure Pan Pacific during its [350]*350construction of the Bellingham Surgery Center (Center). The policy insured against physical losses to property occurring between December 20, 1984, and January 31, 1986, the anticipated period of construction:

The policy specifically excluded from coverage the “[cjost of making good faulty or defective workmanship, material, construction or design,” but the policy did cover “damage resulting from such faulty or defective workmanship, material, construction or design.” Clerk’s Papers (CP) at 153. The parties agree that the policy covers “radiating” damage only if it occurred during the policy period.

Pan Pacific abandoned construction prior to completing the tenant improvement work. In December 1991, the Center’s owners, Joan Schwindt and Richard Jones, sued Pan Pacific alleging breach of contract, fraudulent mismanagement of corporate accounts and breach of fiduciary duties. As relevant to Pan Pacific’s subsequent coverage claim against Commonwealth, the owners alleged only that “[cjertain equipment and material, particularly mechanical equipment, doors and door hardware supplied by Pan Pacific” were “defective and below the standards required by the Contract.” CP at 19-20.

Nearly two years later, in October 1993, Pan Pacific first notified Commonwealth that it intended to seek indemnification for this claim by the owners and urged Commonwealth to appear pursuant to a reservation of rights. In November, Commonwealth acknowledged receipt of Pan Pacific’s notice and informed Pan Pacific that, although the policy did not require it to defend Pan Pacific in litigation, Commonwealth would undertake an investigation to determine if the policy provided coverage.

On January 20, 1994, when Commonwealth had failed to appear in the owners’ action against Pan Pacific and had failed to acknowledge coverage, Pan Pacific filed this breach of contract action. Three months later the owners signed a settlement agreement with Pan Pacific, in which Pan Pacific assigned to the owners its rights under the pending lawsuit [351]*351against Commonwealth.1 In November 1996, Commonwealth filed its answer formally denying coverage.

In October 1997, the trial court granted Commonwealth’s motion for summary judgment concluding that Pan Pacific’s action was barred by the six-year contract statute of limitations. Pan Pacific appealed contending that its cause of action did not accrue until Commonwealth rejected its claim for indemnification.

The court of appeals held that the cause of action accrued when the damage occurred. Schwindt v. Commonwealth Ins. Co., 94 Wn. App. 504, 508-09, 972 P.2d 570 (1999). The court of appeals relied upon cases holding that, for property insurance coverage purposes, the time of an “occurrence” is the date the property sustains damage. See Schwindt, 94 Wn. App. at 508 n.7 (citing inter alia, Villella v. Public Employees Mut. Ins. Co., 106 Wn.2d 806, 811, 725 P.2d 957 (1986) and Cope Constr. Co. v. American Home Assurance Co., 28 Wn. App. 38, 44, 622 P.2d 395 (1980)).

ISSUES

We are asked to decide (1) whether Pan Pacific’s cause of action against Commonwealth accrued more than six years before Pan Pacific filed suit; and (2) if Pan Pacific’s cause of action were timely, whether summary judgment dismissal would have been proper on the grounds of estoppel.

I. ACCRUAL

Pan Pacific contends that an insured’s cause of action against its insurer for failure to provide coverage does not accrue until the insurer improperly denies coverage. Appellant’s Br. at 10-12 (citing Safeco Ins. Co. v. Barcom, 112 Wn.2d 575, 773 P.2d 56 (1989) and Bush v. Safeco Ins. Co. of Am., 23 Wn. App. 327, 596 P.2d 1357 (1979)). Com[352]*352monwealth contends that, in the context of first party property insurance, the limitations period begins to run on the date the loss occurs. Resp’t’s Br. at 7, 9 (citing Simms v. Allstate Ins. Co., 27 Wn. App. 872, 875, 621 P.2d 155 (1980)); Resp’t’s Supplemental Br. at 1, 8-11 (citing RCW 48.18.200(l)(c); RCW 48.18.120(1); WAC 284-20-010(3)).

Commonwealth further contends that the Simms holding is consistent with the general rule that a party cannot unilaterally and indefinitely extend a limitations period by delaying satisfaction of a precondition to filing suit. Resp’t’s Br. at 9-12 (citing Edison Oyster Co. v. Pioneer Oyster Co., 22 Wn.2d 616, 626-27, 157 P.2d 302 (1945) and Young v. City of Seattle, 30 Wn.2d 357, 363, 191 P.2d 273 3 A.L.R.2d 704 (1948)). In response, Pan Pacific contends that courts adequately protect insurers from tardy coverage claims by applying equitable principles rather than the statute of limitations. For this purpose, Pan Pacific acknowledges that the date the insured discovers its loss is relevant, but claims that there are disputed issues of material fact regarding when Pan Pacific discovered “radiating” damage.

Amici2 claim that the court of appeals failed to recognize the distinctions between occurrence policies like the one involved here, and claims-made policies, and, thus, its ruling transforms all occurrence policies into claims-made policies with six-year reporting periods.3

The parties agree that the six-year contract statute of [353]*353limitations is the proper limitations period. See RCW 4.16.040 (an action upon a written contract must be commenced within six years). Thus, the central issue in this case is: what event triggers the running of this six-year period?

This Court has previously found that the contract statute of limitations begins to run against an insured on the date the insurer breaches the contract of insurance. Barcom, 112 Wn.2d at 583; see also Denny’s Restaurants, Inc. v. Security Union Title Ins. Co., 71 Wn. App.

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140 Wash. 2d 348, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schwindt-v-commonwealth-insurance-wash-2000.