Tento International, Inc. v. State Farm Fire & Casualty Co.

222 F.3d 660, 2000 Cal. Daily Op. Serv. 5766, 2000 Daily Journal DAR 7687, 2000 U.S. App. LEXIS 16013, 2000 WL 963939
CourtCourt of Appeals for the Ninth Circuit
DecidedJuly 13, 2000
DocketNos. 98-56862, 99-55170
StatusPublished
Cited by15 cases

This text of 222 F.3d 660 (Tento International, Inc. v. State Farm Fire & Casualty Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tento International, Inc. v. State Farm Fire & Casualty Co., 222 F.3d 660, 2000 Cal. Daily Op. Serv. 5766, 2000 Daily Journal DAR 7687, 2000 U.S. App. LEXIS 16013, 2000 WL 963939 (9th Cir. 2000).

Opinion

DAVID R. THOMPSON, Circuit Judge:

Tentó International, Inc. (“Tentó”) appeals the district court’s dismissal of its claims against State Farm Fire and Casualty Company (“State Farm”). A third-party contractor making repairs to the roof of Tento’s rented business premises neglected to place a temporary covering over an open space in the roof, allowing rain to damage Tento’s electronics equipment. State Farm denied coverage under its insurance policy.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse.

FACTUAL BACKGROUND

Tento’s landlord hired a roofing contractor to make repairs to the roof covering Tento’s electronics equipment business. The contractor removed a portion of the roof but failed to install a temporary covering. Almost predictably, rain fell and damaged Tento’s electronics equipment.

Tento’s insurance policy with State Farm covered accidental direct physical loss unless it was either “limited in the PROPERTY SUBJECT TO LIMITATIONS section” or “excluded in the LOSSES NOT INSURED section.” The policy limited its coverage for rain-damaged goods in the PROPERTY SUBJECT TO LIMITATIONS section, stating:

We will not pay for loss:
6.to the interior of any building • or structure, or the property inside any building or structure, caused by rain, ... unless:
a. the budding or structure first sustains damage by an insured loss to its roof or walls through which the rain ... enters....

In the LOSSES NOT INSURED section, later on in the policy, the policy excluded a loss caused by a third party, but [662]*662there was an exception to this exclusion if the loss was a “resulting loss.” The relevant provisions of the LOSSES NOT INSURED section read:

3. We do not insure under any coverage for any loss consisting of one or more of the items below....
a. conduct, acts or decisions, including the failure to act or decide, of any person, group, organization or governmental body whether intentional, wrongful, negligent or without fault.
b. faulty, inadequate, unsound or defective:
(1) planning, zoning, development, surveying, siting;
(2) design, specifications, workmanship, repair, construction, renovation, remodeling, grading, compaction;
(3) materials used in repair, construction renovation or remodeling; or
(4) maintenance;
of part or all of any property....
But if accidental direct physical loss results from items 3.a. and 3.b., we will pay for that resulting loss unless the resulting loss is itself one of the losses not insured in this section.

Tentó filed a claim with State Farm for its rain-damaged property. When State Farm denied coverage, Tentó filed suit in California state court. State Farm removed the case to federal district court based on diversity of citizenship.1 The district court granted State Farm’s motion to dismiss, holding, pursuant to the PROPERTY SUBJECT TO LIMITATIONS section of the policy, that the policy clearly excluded coverage for damage caused by rain because the building did not first sustain damage to its roof by an insured loss. Tentó appeals.

DISCUSSION

I. Efficient Proximate Cause

We review de novo a district court’s dismissal of a complaint. See Pillsbury, Madison & Sutro v. Lerner, 31 F.3d 924, 928 (9th Cir.1994). We construe allegations of material fact in the light most favorable to the plaintiff, affirming a dismissal only if “ ‘it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Chandler v. McMinnville Sch. Dist., 978 F.2d 524, 527 (9th Cir.1992) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).

Tentó contends that the district court incorrectly treated the rain instead of the contractor’s negligence as the cause of its loss and, as a result, wrongly concluded that its damages fell outside the scope of the insurance policy. We agree. While the rain may have been the most immediate cause of Tento’s damages, the more important inquiry involves determining, under California law, the efficient proximate cause of the damage. The efficient proximate cause was the contractor’s negligent handling of the roof repair.2

The mixture of causes present in this case-rain and the contractor’s negligence-parallels the causes in Allstate Insurance Co. v. Smith, 929 F.2d 447 (9th Cir.1991), in which a roofer similarly failed to cover exposed premises, allowing rain to damage property within. See id. at 449. We held that, “although rain ‘operate[d] more immediately in producing the disaster,’ it was [663]*663the contractor’s failure to cover the premises that ‘set in motion’ the chain of events leading to Smith’s losses. The roofer’s failure to cover the exposed premises, therefore, was the efficient proximate cause of Smith’s losses.”3 Id. at 451 (alteration in original) (citation omitted).

In Allstate, we relied on the California Supreme Court’s opinion in Sabella v. Wisler, 59 Cal.2d 21, 27 Cal.Rptr. 689, 377 P.2d 889 (1963), in which that court held that in

determining whether a loss is within an exception in a policy, where there is a concurrence of different causes, the efficient cause-the one that sets the others in motion-is the cause to which the loss is to be attributed, though the other causes may follow it, and operate more immediately in producing the disaster.

Id. at 31, 377 P.2d at 895 (internal quotation marks and citation omitted). The California Supreme Court later moved away from this formulation and held that the efficient proximate cause is “the predominating” or “most important cause of the loss.” Garvey v. State Farm Fire & Cas. Co., 48 Cal.3d 395, 257 Cal.Rptr. 292, 770 P.2d 704, 708 (1989). Here, the contractor’s failure to cover the roof was “the predominating” or “most important cause” of Tento’s loss, and thus it was the efficient proximate cause under Garvey. Because the contractor’s negligence was the efficient proximate cause, Tento’s loss would be covered unless excluded under the LOSSES NOT INSURED section of the policy.

H. Losses Not Insured

The contractor’s negligence is third-party negligence which, at first glance, seems to preclude coverage under the LOSSES NOT INSURED section of the policy.

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222 F.3d 660, 2000 Cal. Daily Op. Serv. 5766, 2000 Daily Journal DAR 7687, 2000 U.S. App. LEXIS 16013, 2000 WL 963939, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tento-international-inc-v-state-farm-fire-casualty-co-ca9-2000.