Great Plains Ventures, Inc. v. Liberty Mutual Fire Insurance
Great Plains Ventures, Inc. v. Liberty Mutual Fire Insurance
Opinion of the Court
MEMORANDUM AND ORDER
Plaintiff Great Plains Ventures, Incorporated (“GPV”) brings this action to recover
I. Summary Judgment Standard
Summary judgment is appropriate if the moving party demonstrates that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law.
The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.
II. Uncontroverted Facts
The following material facts are either uncontroverted, stipulated to for the pur
The Policy and Covered Property.
Plaintiff GPV is a holding company that has majority ownership in several manufacturing companies. Defendant Liberty Mutual issued policy of insurance number YU2-L4L-433977-032 (“Policy”) to GPV providing coverage for loss or damage to GPVs covered buildings, personal property, business income, and extra expense, subject to the Policy terms. The Policy had effective dates from September 1, 2012 through September 1, 2013. The Covered Property consists of one office building and four warehouses. These buildings are located at: 3504 N. Great Plains (the “3504 Building”); 5200 E. 35th Street North (the “5200 Building”); 5201 E. 36th Street North (the “5201 Building”); 5252 E. 36th Street North (the “5252 Building”); and 5260 E. 36th Street North (the “5260 Building”), all in Wichita, Kansas (collectively, “Covered Property”).
The 5201, 5252, and 5260 buildings all have low-pitched, standing seam metal roofs. The 5200 Building also has a low-pitched metal roof, but in 2012, a silicone-based coating was installed on that building’s roof. The roof of the 3504 Building has a TPO membrane as well as a tower that is covered with a metal roof. Before issuing the Policy, Liberty Mutual inspected the roofs on the covered property on August 6, 2012, and found them to be in “overall good condition, with no unfavorable conditions observed.”
■The Policy contains several clauses that are relevant to the scope of coverage. A section near the beginning of the document labeled “Insuring Agreement” states that “Subject to all the terms and conditions of this policy, we will pay for risks of direct physical loss or damage to covered property as a result of an occurrence, unless excluded.”
The Storm and the Claim
Op May 19, 2013, a hail storm impacted the area in northeast Wichita, in which the Covered Property is located. The hail caused damage to the siding and HVAC units of the Covered Property, and caused indentations to the roofs of the buildings. On May 21, 2013, GPV notified Liberty Mutual of the damage to the Covered Property resulting from the hail storm. Liberty Mutual retained NHI General Adjusters (“NHI”) and Engineering Design & Techríology (“ED & T”) to assist with the investigation of GPV’s claim.
Beginning on May 25, 2013, NHI conducted an inspection of the Covered Property on behalf of Liberty Mutual. Liberty Mutual sent GPV copies of NHI’s apprais
On October 14, 2013, Dustin Robertson, then a general adjuster of complex claims for Liberty Mutual, sent an email summarizing the distinctions between functional and aesthetic damage to Marque Peer, GPV’s Vice President of Development. Mr. Robertson explained that “minor impact damage or blemishes” to the roofs “would not be included in our scope of damage.”
Liberty Mutual responded with a letter on February 17, 2014, stating that it disagreed with GPV’s claimed ioss of $4,393,135.42 and that “[t]he policy does not provide coverage for the amount sought.”
III. Discussion
A. Scope of Policy Coverage
Plaintiff seeks declaratory relief limited to the question whether the Policy provides coverage for the hail indentations on the metal seam roofs of the 5201, 5252, and 5260 buildings. For purposes of its sum
The interpretation and legal effect of an insurance contract is a matter of law to be determined by the court.
Here, the parties do not dispute that the hail storm caused indentations of a cosmetic nature on the roofs of the Covered Property. The Court must therefore determine whether, as a matter of law, the Policy provides coverage for cosmetic hail indentations on the metal seam roofs. Although the parties focus on different clauses within the Policy, the Court notes that
1) “Insuring Agreement” Section
The Court begins by construing the “Insurance Agreement” section, which generally defines the scope of the Policy. Plaintiff argues that the Policy covers hail indentations of any kind based on the language in this section that provides coverage for “direct physical loss or damage.” In support of its argument, Plaintiff cites Advance Cable Co. v. Cincinnati Insurance Co.,
The court found that even if there had been no quantifiable “loss,” the policy expressly contemplated the possibility that there may be “damage.”
Here, there can be no meaningful dispute that a physical alteration to the property occurred. Even assuming this alteration is merely cosmetic, as Cincinnati Insurance contends, there are still dents in the roof panels ranging from barely discernible to an inch or so in diameter. That the denting is minor does not alter the fact that it is still a tangible alteration to the roof. The policy does not state that damage must reach some level of severity to trigger the coverage threshold ... The limitations that Cincinnati Insurance seeks to impose on coverage cannot be found in the Policy’s unambiguous language.39
Based on these findings, the court granted summary judgment in favor of Advance Cable. On appeal, the Seventh Circuit affirmed the court’s ruling, noting that “[t]here is no exception to the definition of ‘loss’ for cosmetic damage or any other kind of particular damage.”
Plaintiff argues that the Advance Cable case demonstrates that “physical loss or damage” language in an insurance policy unambiguously applies to cosmetic hail
Based on a plain reading of the phrase “physical loss or damage,” the Court finds that the “Insuring Agreement” section of the Policy unambiguously provides coverage for hail dents on a metal seam roof. Here, the “Insuring Agreement” section states that Defendant will pay for risks of “physical loss or damage.” The court in Advance Cable held that this precise language provided coverage for cosmetic hail dents in an insured’s metal roofs.
Defendant cites several cases for the proposition that “physical loss or damage” requires a showing of a measurable reduction in the property’s usefulness or a change to an unsatisfactory state. These cases, however, do not apply directly to the interpretation of the phrase “physical loss or damage” in this Policy.
2) “Coverages” Section
The Court next turns to the- “Coverages” section of the Policy. Defendant argues that because Plaintiffs claim involves real property, the scope of coverage under the Policy is defined not by the “Insuring Agreement” section, but by the “Coverages” section. This section states that “[i]f coverage for real property is provided ... we will pay for a covered loss to your real property at or within one-thousand (1,000) feet of a covered location.” Defendant points to the definition of “covered loss” in the Policy as “a loss to covered property at a covered location resulting from a peril insured against.” Defendant cites several cases and dictionary definitions for the proposition that “a loss” means “an undesirable outcome of a risk” or a “financial detriment.”
Defendant argues that the more specific definition of “covered loss” in the “Coverages” section acts as a limitation on the “physical loss or damage” language in the “Insuring Agreement” section. Defendant invokes the rule of ejusdem generis, arguing that under this principle the Policy’s more specific provisions in the “Coverages” section control over the more general provisions at the beginning of the Policy in the “Insuring Agreement” section.
According to Defendant, “the Policy language specific to real property, contained within the ‘COVERAGES’ form of the Policy, controls over any broad and general language of the insuring agreement.”
B. Attorneys’ Fees
Plaintiff also argues that it is entitled to summary judgment on the issue of attorneys’ fees under K.S.A. § 40-908. K.S.A. § 40-908 provides:
That in all actions now pending, or hereafter commenced in which judgment is rendered against any insurance company on any policy given to insure any property in this state against loss by fire, tornado, lightning or hail, the court in rendering such judgment shall allow the plaintiff a reasonable sum as an attorney’s fee... Provided, however, [t]hat when a tender is made by such insurance company before the commencement of the action in which judgment is rendered and the amount recovered is not in excess of such tender no such costs shall be allowed.54
Plaintiff contends that it is entitled to attorneys’ fees under K.S.A. § 40-908 based on the • declaratory judgment from the Court on the issue of coverage. Defendant responds that Plaintiff has not shown that it is entitled to attorneys’ fees under K.S.A. § 40-908 because Defendant made a tender under the Policy in the amount of $611,883.51 before the commencement of the action, and because a declaratory judgment here would not result in any monetary award. Plaintiff counters that Defendant’s tender was not effective to trigger the exception under K.S.A. § 40-908 because the payment was meant to compensate for losses under the Policy other than the denting to the metal seam roofs.
Although the tender was not made to compensate for the losses at issue here, the Court finds that Defendant’s tender was effective for purposes of K.S.A. § 40-908. The payment was made under the Policy at issue here, and the statute does not state a requirement that the tender be made for the purpose of compensating the specific disputed loss.
IV. Conclusion
Based on the unambiguous language in the Policy providing coverage for “physical loss or damage” to the Covered Property, the Court finds that the Policy covers the hail dents to Plaintiffs 5201, 5252, and 5260 buildings. Therefore, the Court grants summary judgment in favor of Plaintiff on this issue. However, because Defendant made a tender to Plaintiff before the commencement of this action, and because Plaintiff has not yet obtained a monetary judgment, the Court denies Plaintiffs motion for summary judgment without prejudice on the issue of'attorneys’ fees.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiffs Motion for Summary Judgment (Doc. 104) is granted in part and denied in part. The Court grants summary judgment on the issue of coverage and denies summary judgment without prejudice on the issue of attorneys’ fees.
IT IS SO ORDERED.
. Fed. R. Civ. P. 56(a); see also Grynberg v. Total, 538 F.3d 1336, 1346 (10th Cir. 2008).
. City of Herriman v. Bell, 590 F.3d 1176, 1181 (10th Cir. 2010).
. Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).
. Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001) (citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)).
. Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
. Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir. 2002) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
. Ricks v. Xerox Corp., 877 F.Supp. 1468, 1474 (D.Kan. 1995) (citing Fed. R. Civ. P. 56(c)); Harper v. Mancos Sch. Dist. RE-6, 837 F.Supp.2d 1211, 1217 (D.Colo. 2011) (citing In re Ribozyme Pharms., Inc. Sec. Litig., 209 F.Supp.2d 1106, 1111 (D.Colo. 2002)).
. Anderson, All U.S. at 256, 106 S.Ct. 2505; Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Spaulding, 279 F.3d at 904 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).
. Anderson, 477 U.S. at 256, 106 S.Ct. 2505; accord Eck v. Parke, Davis & Co., 256 F.3d 1013, 1017 (10th Cir. 2001).
. Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1197-98 (10th Cir. 2000) (quoting Adler, 144 F.3d at 671); see Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010).
. Doc. 105 at 3.
. Doc. 105, Ex. A at 12. The bolded terms in the Policy are in the original and indicate terms that are further defined within the Policy-
. Doc. 105-6 at 48.
. Id.
. Id. at 38.
. Doc. 105, Ex. B at 87-89.
. Doc. 105, Ex. D at 93:20-94:20, 136:19-23.
. The parties do not dispute that the Policy provides coverage for functional or structural hail damage, but they dispute whether functional damage occurred.
. See Doc. 105 at 16 ("Regardless of what terminology Liberty Mutual uses to describe the dents in GPV's roofs, the fact remains that the denting is a Covered Loss under the policy”).
. Doc. 108 at 33-34.
. Am. Media, Inc. v. Home Indem. Co., 232 Kan. 737, 658 P.2d 1015, 1018 (1983); Gerdes v. Amer. Family Mut. Ins. Co., 713 F.Supp.2d 1290, 1295 (D.Kan. 2010) (quoting Goforth v. Franklin Life Ins. Co., 202 Kan. 413, 449 P.2d 477 (1969)).
. Am. Media, 658 P.2d at 1018; Gerdes, 713 F.Supp.2d at 1295.
. O’Bryan v. Columbia Ins. Grp., 274 Kan. 572, 56 P.3d 789, 792 (2002) (citing Farm Bureau Mut. Ins. Co. v. Horinek, 233 Kan. 175, 660 P.2d 1374 (1983)); Magnus, Inc. v. Diamond State Ins. Co., 101 F.Supp.3d 1046, 1054 (D.Kan. 2015) (citing Brumley v. Lee, 265 Kan. 810, 963 P.2d 1224, 1226 (1998)).
. O’Biyan, 56 P.3d at 792 (citing First Fin. Ins. Co. v. Bugg, 265 Kan. 690, 962 P.2d 515 (1998)); Magnus, 101 F.Supp.3d at 1054.
. Gerdes, 713 F.Supp.2d at 1296.
. Magnus, 101 F.Supp.3d at 1054 (citing Brumley, 963 P.2d at 1226); O’Bryan, 56 P.3d at 793 (citing Catholic Diocese of Dodge City v. Raymer, 251 Kan. 689, 840 P.2d 456, 459 (1992)).
. Gerdes, 713 F.Supp.2d at 1296 (quoting Catholic Diocese, 840 P.2d at 459).
. Id.
. Id.
. O’Bryan, 56 P.3d at 792.
. No. 13-cv-229, 2014 WL 975580 (W.D.Wis. June 20, 2014).
. Id. at *1.
. Id.
. Id. at *9.
. Id.
. Id. at *10.
. Id.
. Id. at *11 (quoting 10A Couch on Insurance § 148:46 (3d ed. 2013)).
. Id.
. Advance Cable Co. v. Cincinnati Ins. Co., 788 F.3d 743, 747-48 (7th Cir. 2015).
. Advance Cable, 2014 WL 975580 at *1.
. Id. at *7-11; Advance Cable, 788 F.3d at 747-48.
. As Defendant notes, unlike in Advance Cable, the word “loss” is not defined in this Policy as "physical loss or damage.” However, this does not change the fact that the phrase “physical loss or damage” is relevant to the scope of coverage issue here. Therefore, the Court will consider persuasive authority such as Advance Cable that bears directly on the meaning of “physical loss or damage.”
. Port Auth. of N.Y. & N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 235 (3d Cir. 2002) (citing 10 Couch on Insurance § 148:46 (3d ed. 1998) ("In ordinary parlance and widely accepted definition, physical damage to property means 'a distinct, demonstrable, and physical alteration’ of its structure.”); Universal Image Prods., Inc. v. Fed. Ins. Co., 475 Fed.Appx. 569, 574 (6th Cir. 2012) (same).
. See Trinity Indus., Inc. v. Ins. Co. of N. Am., 916 F.2d 267, 270-72 (5th Cir. 1990) (holding that "physical loss or damage” clause in insurance policy did not provide coverage for defective design or "faulty initial construction”); AFLAC Inc. v. Chubb & Sons, Inc., 260 Ga.App. 306, 581 S.E.2d 317, 319-20 (2003) (ruling that "direct physical loss or damage” clause did not provide coverage for routine maintenance and upgrades to insured’s computer systems); Ports of Ind. v. Lexington Ins. Co., No. 1:09-cv-0854, 2011 WL 5523419, at *10 (S.D.Ind. Nov. 14, 2011) (holding that “direct physical’loss or damage” clause required plaintiff to demonstrate reduction in property’s usefulness or its ability to safely serve its purpose, where plaintiff alleged structural damage and cosmetic damage was "not at issue”); Mohr v. Am. Auto. Ins. Co., No. 01 C 3229, 2004 WL 533475 (N.D.Ill. Mar. 5, 2004) (finding that although policy provided coverage for hail indentations on metal roof, policy did not require a full replacement of roof where parties presented no evidence of functional or structural damage).
. See e.g., Kelly v. Farmers Ins. Co., 281 F.Supp.2d 1290, 1298 n. 5 (W.D.Okla. 2003) (stating that “loss” is generally understood to mean "financial detriment”); B.S.C. Holding, Inc. v. Lexington Ins. Co., No. 11-CV-2252, 2014 WL 2207966, at *6 (D.Kan. May. 28, 2014) (referring to definition of "loss” as an undesirable outcome of a risk or the disappearance or diminution of value)).
. Doc. 108 at 27-28.
. State v. Moler, 269 Kan. 362, 2 P.3d 773, 775 (2000); Ejusdem Generis, Black’s Law Dictionary (10th ed. 2014) ("[flor example, in the phrase horses, cattle, sheep, pigs, goats, or any other farm animals, the general language or any other farm animals — despite its seeming breadth. — would probably be held to include only four-legged, hoofed mammals typically found on farms, and thus would exclude chickens”) (emphasis in original).
. Doc. 108 at 28.
. Marshall v. Kan. Med. Mut. Ins. Co., 276 Kan. 97, 73 P.3d 120, 130 (2003) (citing Marquis v. State Farm Fire & Cas. Co., 265 Kan. 317, 961 P.2d 1213 (1998)); Dillon Cos. v. Royal Indem. Co., 369 F.Supp.2d 1277, 1284 (D.Kan. 2005).
. Dillon Cos., 369 F.Supp.2d 1277 (citing Fancher v. Carson-Campbell, Inc., 216 Kan. 141, 530 P.2d 1225, 1229 (1975)).
. Doc. 108 at 28.
. See Lead GHR Enters., Inc. v. Am. States Ins. Co., No. CIV. 12-5056, 2014 WL 10538028, at *10 (D.S.D. May 15, 2014) (“It seems axiomatic that a dented roof is worth incrementally less than an undented roof.”).
. K.S.A. § 40-908 (emphasis in original).
. See id.
. Id.
. See Fed. R. Civ. P. 54(d)(2)(B) (requiring movant for attorney's fees to "specify the judgment and the statute, rule, or other grounds entitling the movant to the award").
Reference
- Full Case Name
- GREAT PLAINS VENTURES, INCORPORATED v. LIBERTY MUTUAL FIRE INSURANCE COMPANY
- Cited By
- 6 cases
- Status
- Published