Vision One, LLC v. Philadelphia Indemnity Insurance

158 Wash. App. 91
CourtCourt of Appeals of Washington
DecidedOctober 19, 2010
DocketNos. 38411-6-II; 41021-4-II
StatusPublished
Cited by6 cases

This text of 158 Wash. App. 91 (Vision One, LLC v. Philadelphia Indemnity 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
Vision One, LLC v. Philadelphia Indemnity Insurance, 158 Wash. App. 91 (Wash. Ct. App. 2010).

Opinion

Armstrong, J.

fl Shoring equipment supporting a poured concrete slab collapsed during the construction of a condominium complex being developed by Vision One LLC and Vision Tacoma Inc. (collectively Vision). Philadelphia Indemnity Insurance Co., Vision’s insurance company, denied Vision’s insurance claim and Vision sued Philadelphia for breach of contract, bad faith, and violations of the Consumer Protection Act (CPA), chapter 19.86 RCW. The trial court ruled that the concrete slab collapse was covered under the “resulting loss” exception to the policy’s faulty workmanship exclusion. A jury found that Philadelphia acted in bad faith and committed five CPA violations.

¶2 Vision also sued D&D Construction, Inc., the contractor responsible for the concrete work, and D&D sued Berg Equipment and Scaffolding Co., the contractor responsible for supplying the shoring equipment. Vision settled with D&D and Berg and the settlement released Berg from liability. Philadelphia moved to dismiss Vision’s breach of contract claim, contending that Vision breached the insurance contract by impairing Philadelphia’s recovery rights against Berg. The trial court denied Philadelphia’s motion.

¶3 Philadelphia appeals (1) the trial court’s denial of its motion to dismiss Vision’s breach of contract claim, (2) the trial court’s ruling that the concrete slab collapse is covered as a resulting loss, and (3) the measure of damages and attorney fees. Vision cross-appeals, also assigning error to the measure of damages. Because material facts regarding the cause of the collapse remain in dispute, we reverse the judgment against Philadelphia and remand for a jury to determine causation. We also hold as a matter of law that [96]*96the concrete slab collapse is not a resulting loss under the faulty workmanship resulting loss provision.

FACTS

I. Collapse and Insurance Claim

¶4 In 2005, Vision began developing a condominium complex in Tacoma. Vision contracted with D&D for the concrete work and D&D contracted with Berg for shoring equipment to temporarily support the poured concrete slabs. On October 1, 2005, D&D poured a concrete slab and the shoring structure collapsed. After receiving Vision’s insurance claim, Philadelphia hired BT & Associates to determine the cause of the collapse.

¶5 A structural engineer examined the shoring design drawings and concluded that the design was adequate for supporting the poured concrete but that “at best, this shoring design is marginal and it doesn’t allow for any inadequacies in the shoring installation.” Clerk’s Papers (CP) at 6110, 6112. BT & Associates also inspected the shoring equipment and identified numerous flaws with the shoring installation, including missing cross-braces, overextended tubes, tilting shoring towers, and inadequately supported base plates placed on unlevel surfaces. The report concluded:

The marginal shoring design alone may not have caused the ... collapse .... We suggest that this factor in combination with various shoring installation problems identified in this report, on a more likely than not basis, caused the shoring to collapse ....

CP at 6118.

¶6 Vision’s insurance policy covers all “direct physical ‘loss,’ ” unless the loss is expressly excluded. CP at 5973-74. The policy expressly excludes loss caused by defective design and loss caused by faulty workmanship. But the faulty workmanship exclusion provides coverage for result[97]*97ing losses: “[If] loss by any of the Covered Causes of Loss results, we will pay for that resulting ‘loss.’ ” CP at 5978.

¶7 Based on these exclusions and the report from BT & Associates, Philadelphia denied Vision’s claim in a letter dated January 3, 2006:

The damage to the construction project was a sole and direct result of the marginal shoring design and faulty installation of the shoring. The policy excludes loss caused by deficiency in design and loss caused by faulty workmanship. Coverage will exist for any resulting loss caused by another insured event or peril. In this instance, the only peril, which caused the loss, was defective design and faulty workmanship, therefore there is no coverage for Vision One’s claims. To the extent any portion of the claim can be considered a resulting loss, other policy exclusions and limitations apply.

CP at 13,136. Vision asked Philadelphia to reconsider, and Philadelphia clarified its evaluation in a letter dated January 27, 2006:

While the faulty workmanship exclusion contains an exception for resulting loss from a Covered Cause of Loss, in [this] case, the only cause of the loss was defective design and faulty workmanship. There is no separate and independent loss that resulted in the claimed damage. Therefore, the faulty workmanship exclusion bars coverage for this loss, and the “resulting loss” provision contained therein does not apply.

CP at 13,139 (emphasis omitted).

II. Litigation between Vision and Philadelphia

¶8 In March 2006, Vision sued Philadelphia in Pierce County Superior Court. In pretrial hearings regarding proposed jury instructions, the parties disagreed over the meaning of several policy provisions. The parties asked the trial court to interpret the disputed provisions as a matter of law and submitted extensive briefing on the issues.

¶9 Vision argued that if there were two excluded causes of loss, then the collapse would be covered because neither [98]*98“directly and solely” caused the collapse. CP at 6,388-91. In response, Philadelphia argued:

The significance of the “directly and solely” language is not to preclude Philadelphia from denying coverage if two or more excluded events occur. It is to preclude Philadelphia from denying coverage if an excluded event and a[ ] non-excluded event result in loss or damage.

CP at 6,492. At a hearing on this issue, Philadelphia clarified that an additional efficient proximate cause analysis is required if the loss was caused by an excluded event and a nonexcluded event. Relying on the language in Philadelphia’s brief, the trial court ruled:

Order on Insurance-Related Issues:
If it is found that the loss was caused by one or more non-excluded event(s) in combination with one or more excluded event(s); the loss is covered.

Report of Proceedings (RP) (July 18, 2008) at 18; CP at 6,587. Philadelphia moved for reconsideration, asking the trial court to amend its ruling to state, “If there are two or more causes of loss, the policy provides coverage if the efficient proximate cause of the loss is a covered cause of loss.” CP at 6,603-06. The trial court denied the motion.

¶10 The parties also disagreed over whether the concrete collapse qualified as a “resulting loss” under the faulty workmanship resulting loss provision. CP at 6,960-7,009. The trial court ruled that because the shoring equipment and concrete slab were “separate and distinct,” the concrete collapse was covered under the resulting loss provision:

Order on Resulting Loss:

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Cite This Page — Counsel Stack

Bluebook (online)
158 Wash. App. 91, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vision-one-llc-v-philadelphia-indemnity-insurance-washctapp-2010.