Dewsnup v. Farmers Insurance
Dewsnup v. Farmers Insurance
Opinion of the Court
The primary question in this case is what is a “roof’ within the meaning of plaintiffs’ homeowners’ insurance policy. Plaintiffs Beth and Tim Dewsnup sustained losses due to water damage while their roof was undergoing repair. Although their insurance policy generally excludes coverage for water damage, they contended that an exception to that exclusion applies. The trial court ruled otherwise on defendant’s motion for summary judgment, and the Court of Appeals affirmed. Dewsnup v. Farmers Ins. Co., 229 Or App 314, 324, 211 P3d 354 (2009). The Court of Appeals reasoned that the exception to the water damage exclusion did not apply because, at the time of the loss, plaintiffs’ roof was not a “roof’ within the meaning of the policy. Id. In particular, the court held that a “roof,” by its ordinary definition, is permanent, and because plaintiffs’ roof was undergoing repair at the time of the loss, no permanent roof was in place to which the exception could apply. Id. We allowed plaintiffs’ petition for review and now reverse the Court of Appeals decision and the trial court’s judgment.
Because this case arises on defendant’s motion for summary judgment, we state the facts in the light most favorable to plaintiffs. Bergmann v. Hutton, 337 Or 596, 599, 101 P3d 353 (2004). Plaintiffs’ roof, which consisted of a plywood sublayer and an outer layer of wood shakes, was in need of repair. Plaintiff Tim Dewsnup is a contractor and took it upon himself to perform the repairs. In doing so, he removed the layer of wood shakes in its entirety, replacing it with a layer of six-mil-thick polyethylene plastic that completely covered the plywood sublayer beneath.
On the first night of plaintiffs’ roof repair project, a storm moved through the area. Rising winds caused part of the polyethylene sheeting to loosen and eventually blow away. Tim Dewsnup attempted to replace the sheeting but, in doing so, fell off of the house, taking one or more of the plastic sheets with him to the ground. Dewsnup injured himself when he fell. While he was injured and unable to secure the sheets over the now-exposed areas of the plywood sublayer, rain began to enter the home through the joints in the sublayer. The rain caused water damage to plaintiffs’ personal property inside the home, for which plaintiffs filed an insurance claim. Defendant denied the claim on the ground that water damage was excluded under plaintiffs’ policy.
Plaintiffs brought an action in the trial court for breach of contract. In response, defendant moved for summary judgment, claiming that plaintiffs’ insurance policy excluded loss resulting from water damage. Defendant reasoned that water damage is generally excluded except when a windstorm or hail creates an opening in a roof. Defendant contended that, because the polyethylene “tarp” was not a “roof,” the policy did not cover plaintiffs’ water damage. Alternatively, defendant argued that, to the extent that the plastic tarp could be considered a “roof,” the loss resulted from “faulty or inadequate workmanship” and was, for that reason, also excluded from coverage under the policy.
The trial court granted defendant’s summary judgment motion. Rather than doing so on the grounds set forth by defendant, the court interpreted plaintiffs’ insurance policy to cover only the “dwelling” described in the policy declarations; that is, a dwelling of “frame” construction with a “wood shingle or shake” roof. According to the trial court, at the moment plaintiffs removed the wood shakes, the building was no longer the “dwelling” insured under the policy. As a
On appeal, the Court of Appeals rejected the trial court’s conclusion that, by removing the wood shakes, the entire structure was no longer insured under the policy. The court reasoned that no plausible interpretation of the insurance policy supported such a conclusion, pointing out that “[i]f, for example, the policy happened to describe the house as having been painted white, the fact that the owners later decided to paint it yellow would not mean that the house would no longer be covered.” Dewsnup, 229 Or App at 320. The Court of Appeals reasoned that the policy declarations should not be construed as “condition[s] of coverage.” Id. (emphasis omitted).
The Court of Appeals nevertheless affirmed the trial court’s judgment, holding that “in no reasonable sense would the sheet of plastic constitute [a] roof.” Id. at 322. Noting that the policy did not define the term “roof,” the court looked to the ordinary meaning of the terms “roof’ and “roofing” and determined that, “[a]s defined, ‘roofing’ is the outermost layer of the cover of a building and consists of materials that are suitable for construction and for application to a roof as protection from the weather.” Id. at 321-22 (emphasis omitted). According to the court, “a temporary, plastic sheet * * * is not, itself, a ‘roof or part of the roof,” id. (emphasis added); rather, the sheet was simply a temporary protective covering in place of an actual roof, and therefore, the loss was not covered. Because the court found its definition of “roof’ disposi-tive, it did not address defendant’s alternative grounds for affirming the trial court’s grant of summary judgment.
We allowed plaintiffs’ petition for review to consider what constitutes a “roof’ within the meaning of plaintiffs’ insurance policy and whether, viewing the facts in the light most favorable to plaintiffs, a reasonable juror could find that plaintiffs’ roof came within that definition. We begin with the meaning of the term “roof’ in plaintiffs’ policy.
The insurance policy at issue here, like other insurance policies, is organized in terms of coverages and exclusions; in this policy, the coverage clauses bring certain property within the protection of the policy, while the exclusion
The general coverage clauses in plaintiffs’ insurance policy are found in the section entitled “LOSSES INSURED.” These clauses extend coverage to plaintiffs’ “[d]welling,” to “[s]eparate structures,” and to certain personal property located within the dwelling or separate structures. Exclusions from that coverage are listed in the section entitled “SECTION I — LOSSES NOT INSURED.” The policy excludes coverage for water damage, but provides exceptions to that exclusion. It states, in part:
“Whenever water damage occurs, the resulting loss is always excluded under this policy, however caused; except we do cover:
«Hs Hi * * *
“2. Loss or damage to the interior of any dwelling or separate structures, or to personal property inside the dwelling or separate structures caused by water damage if the dwelling or separate structures first sustain loss or damage caused by a peril described under SECTION I — LOSSES INSURED —Coverage C — Personal Property.”
The perils described under “SECTION I — LOSSES INSURED — Coverage C — Personal Property’ include “[w]indstorm or hail.”
The practical effect of this string of coverages, exclusions, and exceptions is that, for coverage to extend to water damage, the “direct force of wind or hail” must first damage a building by causing an opening in a roof. Only if rain enters the building through that opening and causes damage to personal property contained in the building will the policy cover that loss. It necessarily follows, and the parties agree, that the building must first have a “roof’ in order for the exception to the water damage exclusion to apply. That raises the question: What is a “roof?” — a question that entails two related but separate issues. First, what is the meaning of the term “roof,” as used in plaintiffs’ insurance policy? Second, could an objectively reasonable juror, viewing the facts in the light most favorable to plaintiffs, find that the condition of the plaintiffs’ roof at the time of the water damage came within that definition?
On the first issue, plaintiffs contend that, contrary to the Court of Appeals’ conclusion, the plain meaning of the term “roof’ does not include a durational component. More specifically, plaintiffs argue that nothing in the definition of “roof’ requires that it be permanent. On that point, plaintiffs note that the policy expressly authorized them to “make * * * repairs to the residence” and that the Court of Appeals’ reasoning would effectively read that authorization out of the policy. Defendant, on the other hand, contends that a “roof’ must be permanent and relies on three cases to support that contention. Defendant argues alternatively that polyethylene plastic sheeting cannot, as a matter of law, constitute a roof.
In interpreting the meaning of an insurance policy, “ ‘[t]he primary and governing rule * * * is to ascertain the
Without a definition of the term “roof’ in the policy, both parties look to the dictionary to identify its plain meaning. According to Webster’s, the term “roof’ means “the outside cover of a building or structure including the roofing and all materials and construction necessary to maintain the cover upon its walls or other support.” Webster’s Third New Int’l Dictionary 1971 (unabridged ed 2002). The term “roofing,” in turn, is defined as:
“a material used or suitable for the construction of a roof; specif: a material designed for application to a roof as protection from the weather <slate <aluminum ~> mineral-surfaced ~>.”
Id. The terms enclosed in the angle brackets — “slate [roofing],” “aluminum [roofing],” and “mineral-surfaced [roofing]” — serve as “verbal illustrations,” illustrating appropriate uses of the term “roofing” in context. See id. at 17a (describing the purpose of examples following a definition).
The ordinary meaning of the terms “roof’ and “roofing” do not expressly require that a roof must be permanent, as defendant argues. To be sure, a “roof,” which consists, in part, of “roofing” materials, should be reasonably suitable to “maintain a cover upon [a building’s] walls” in order to serve its function. See id. at 1971 (so defining the
Defendant, however, relies on three cases to support its argument that a roof, by its plain meaning, must be permanent: Camden Fire Ins. Ass’n v. New Buena Vista Hotel Co., 199 Miss 585, 24 So 2d 848 (1946); Diep v. California Fair Plan Ass’n, 15 Cal App 4th 1205, 19 Cal Rptr 2d 591 (1993); and Aginsky v. Farmers Ins. Exch., 409 F Supp 2d 1230 (D Or 2005). In our view, those cases provide less support than defendant perceives, and the most persuasive of the three cases cuts against defendant’s position. We discuss those cases at greater length than we ordinarily would because we think that the reasoning in those cases helps put the issue in this case in perspective.
The first case, Camden Fire Ins. Ass’n, cuts in plaintiffs’ favor in one respect. The roof in that case was a flat composition roof, composed of a pine sublayer, five layers of alternating felt and pitch, and a gravel layer on top. 24 So 2d at 849. In the course of repairing the roof, the plaintiffs’ contractor cut a 12-by-46-foot opening in the roof, down to the pine sublayer. Id. When a storm came up suddenly, only two layers of felt, unsecured by any pitch, had been placed over half of the opening. Id. The workers sought to cover the remainder of the opening by covering it with felt and “casting themselves upon [the felt], seeking to h[o]ld it against the wind and rain.” Id. Their efforts proved unsuccessful, and the building’s owner brought a claim for damage caused by water entering through the opening that the contractor had cut in the roof, under an insurance policy substantially similar to the policy at issue here.
In resolving that claim, the Supreme Court of Mississippi held that the building did not have a “roof’ within the meaning of the policy. Id. at 850. The court noted that “[s]uch a so-called roof would not be a roof, but only a part
“its construction or reconstruction must have reached the point where a reasonably prudent householder would consider it, if left in that condition for a month or months, or longer, as adequate against all risks of wind and rain which could be reasonably anticipated as likely to happen according to the general and recurrent experiences of the past * * *
Id. As we read the court’s decision in Camden, it adopted a functional definition of a roof that required that the construction or reconstruction be sufficient to protect against the elements and sufficiently durable to last a month or more. The court concluded that no reasonable juror could find that a layer or two of felt, without anything to seal or secure it, would come within that functional definition.
Camden cuts against defendant’s position in two respects. First, it does not hold that construction or reconstruction must provide a permanent seal against the weather to qualify as a roof. Its temporal requirements are far more modest. Second, the court was careful in Camden to examine the nature and construction of the roof. As it noted, the purported “roof’ in that case consisted of only the pine sublayer, not both the pine sublayer and a waterproof covering. The court made clear that, under the facts in that case, the pine sublayer, either by itself or with an insecure layer of felt, did not serve the function of a roof and therefore did not bring the loss within the scope of the exception to the water damage exclusion. See id. at 850 (“Such a so-called roof would not be a roof, but only a part thereof, as are the rafters, or the sheeting on the rafters.”).
The second case relied on by defendant, the California Court of Appeals decision in Diep, appears at first glance to provide greater support for defendant’s argument. However, the court’s cursory description of the facts makes it difficult to determine the breadth of its holding. The court explained in Diep only that a contractor had “removed a portion of [a warehouse] roof and covered the opening with plastic sheeting.” 19 Cal Rptr 2d at 592. The decision contains no
Diep’s reasoning is similarly unhelpful. In defining what constitutes a roof, the court quoted three dictionary definitions, none of which contained any durational component. See id. The court then added, “We could go on, but a roof is commonly considered to be a permanent part of the structure it covers.” Id. The court in Diep thus deduced a requirement of permanency from three sources that do not mention duration. Having done so, it then relied on the Mississippi Supreme Court’s decision in Camden, which defined a roof primarily in terms of its function. Not only is the court’s reference to permanence unsupported, but its requirement that a roof be permanent is inconsistent with its later reliance on Camden. It may be that on its facts, few of which are mentioned, the court reached the correct result in Diep, but we do not find its reasoning persuasive.
In the third case relied on by defendant, Aginsky, the district court noted that it was “persuaded by the authority cited by [the insurer], and in particular by Diep,” that a roof has to be a permanent structure. 409 F Supp 2d at 1236. The court accordingly concluded that a temporary tarp, put over a roof that had been completely removed, could not be considered a roof.
In our view, neither Diep nor Aginsky provides persuasive support for defendant’s contention that a roof must be permanent, and Camden is at odds with defendant’s argument on that point. Beyond that, we note that defendant does not offer any explanation of what “permanent,” in the context of a roof, means. It is not clear whether defendant defines “permanency” as one to two years, five years, 10 years, or more. We find the term “permanent,” in this context, unhelpful, and decline to set a necessarily arbitrary limit on the length of time that a roof must last in order to qualify as such. Rather, a roof should be sufficiently durable to meet its intended purpose: to cover and protect a building against weather-related risks that reasonably may be anticipated. In our view, the meaning of the term “roof’ is sufficiently plain that we need go no further to define its meaning. See Hoffman, 313 Or at 470-71 (describing methodology for interpreting insurance agreements).* ****
Having defined a roof for the purposes of plaintiffs’ insurance policy, the remaining issue is whether no reasonable trier of fact could find that plaintiffs’ roof came within that definition. See ORCP 47 C (“No genuine issue as to a material fact exists if, based upon the record before the court viewed in a manner most favorable to the adverse party, no objectively reasonable juror could return a verdict for the adverse party * * *.”). On that issue, the record before the
Defendant’s remaining arguments reduce, in our view, to factual disagreements with plaintiffs’ expert’s opinion. Defendant contends that the “[t]he plastic tarp [p]laintiffs adhered to the top of their house” cannot be a “material that can protect the structure from the elements.” The only evidence in the record says otherwise, however. To the extent that defendant relies on the definition of “roofing” in Webster’s to argue that a “roof,” in order to function as such, must be composed of certain, specific materials, we think it reads too much into that definition. Webster’s definition of “roofing” includes “verbal illustrations,” examples of possible materials commonly used in the construction of a roof. See Webster’s at 1971 (listing examples). Those examples, however, are not intended to be exhaustive, and the question whether a particular material is “suitable for the construction of a roof’ is a factual issue for the jury. Given the record before the trial court, we cannot say that no reasonable juror could find that polyethylene sheeting, properly secured to a plywood sublayer, was not suitable to protect the house for the duration of the repair.
Defendant argues alternatively that, because the polyethylene sheeting suffered wind damage on the first day of its use, it is “self-evident” that polyethylene sheeting is not a suitable material for the construction of a roof. Perhaps
Given the record before the trial court, we cannot say that no reasonable juror could find that securing the polyethylene sheeting to the plywood sublayer constituted a roof for the purposes of plaintiffs’ homeowners’ insurance policy. It follows that the primary ground on which defendant relies did not provide a basis for granting summary judgment in its favor. As noted, before the trial court, defendant advanced an alternative ground for its summary judgment motion. It contended that, even if plaintiffs’ roof could be considered a “roof’ within the meaning of the policy, the damage to plaintiffs’ roof resulted from “faulty or inadequate workmanship or materials” and was excluded from coverage for that reason. We turn to that argument, which, if correct, would provide an alternative ground for affirming the Court of Appeals decision and the trial court’s judgment.
One section of the policy denies coverage for losses caused by “[f]aulty, inadequate or defective * * * workmanship, construction, * * * maintenance repair materials, * * * or maintenance of part or all of any property * * *.” In
Plaintiffs did not move for summary judgment. Only defendant did. For the reasons set out above, we conclude that the trial court erred when it granted defendant’s motion for summary judgment. It goes without saying that, on remand, the question whether plaintiffs’ roof constituted a roof within the meaning of the policy will present a factual issue for the jury. The same is true of the question whether the workmanship was either faulty or defective. We hold only that, on this record, the grounds that defendant has raised do not provide a basis for granting summary judgment in its favor.
The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
The expert’s affidavit states that the polyethylene plastic was “six millimeter[s] thick,” but defendant noted at oral argument that this measurement should read “six mil.” A “mil” is a unit of measurement commonly used to measure the thickness of plastic sheeting. One mil is equal to one one-thousandth of one inch. The question whether the plastic was six mils or six millimeters thick is not essential to resolving the issue on review.
The record indicates that the polyethylene plastic layer was composed of multiple sheets that, when placed adjacent to one another, completely covered the plywood sublayer. Specifically, the exhibit attached to plaintiffs’ expert’s affidavit contains a diagram showing that three sheets were used to cover the sublayer completely.
“SECTION I — LOSSES INSURED — Coverage C — Personal Property” provides coverage for a second peril that plaintiffs assert also applies here: “Falling objects.” The “[flailing objects” clause generally excludes coverage to personal property unless “the roof * * * is first damaged by a falling object.” Plaintiffs argue that Tim Dewsnup was a “falling object” when he fell from the roof, pulling a portion of
Similarly, the decision notes that even the plaintiff in Diep did not consider that “ ‘[the plastic sheeting], if left in that condition for a month or months, or longer, [would be] adequate against all risks of wind and rain.’ ” 19 Cal Rptr 2d at 594 (quoting Camden, 24 So 2d at 850; first brackets in original).
It appears that the contractor in Aginsky first removed the roof of an apartment building and put a tarp in its place. 409 F Supp 2d at 1231. It is not clear, however, from the decision what, if any, structural elements supported the tarp.
Defendant has not identified any other provisions in the policy that would lead to a different understanding of the word “roof.” Under Hoffman, even if another meaning were plausible, we would still adopt the interpretation that favors the insured. See 313 Or at 470-71 (describing methodology for interpreting insurance agreements).
Defendant advances a series of additional arguments that require only brief discussion. Defendant contends that, under its policy, there must be damage to the building, but here there was no damage. It argues alternatively that, even if the building was damaged, the wind did not cause the damage; Tim Dewsnup did when he removed the wood shakes and exposed the joints in the plywood sublayer. In a variation on the second argument, defendant contends that the wind did not cause the opening in the roof; Dewsnup did when he removed the wood shakes. All those arguments assume, incorrectly on summary judgment, that the polyethylene sheeting secured to the plywood sublayer either did not constitute a roof or was not part of the building.
As explained above, on this record defendant cannot prevail on summary judgment on the ground that the loss was caused by “[flaulty, inadequate, or defective * * * maintenance repair materials.”
Dissenting Opinion
dissenting.
When interpreting an insurance policy, Oregon courts examine the terms and conditions contained in the policy to determine the intentions of the parties. Groshong v. Mutual of Enumclaw Ins. Co., 329 Or 303, 307, 985 P2d 1284 (1999). In this case, the majority concludes that the term “roof’ in a homeowner’s insurance policy can include an arrangement of polyethylene plastic sheeting, six one-thousandths of an inch thick, that the homeowner temporarily stapled to the plywood sublayer of what had been his roof after removing the existing wood shakes.*
The majority accurately describes the coverage, exclusions, and exceptions that, when considered together, determine the kinds of losses — and the causes of those losses — that are covered by the policy at issue here. The dispute is over the meaning of the term “roof’ as used in the policy.
The majority begins well enough with the proposition, “No roof is permanent.” 349 Or at 41. It certainly is true that, at some level, nothing human is permanent, and, even at a more mundane level, we can all agree that house roofs need to be replaced from time to time. But the majority then jumps off a roof of its own by declaring that the concept of permanency is “unhelpful” in determining the definition of “roof.” Id. at 44. How can that be? “Permanency” is one aspect of determining whether the materials and arrangement of the covering of a dwelling constitute a “roof,” as that term is used in a homeowner’s insurance policy. Simply put, there are differences in useful life — as well as in strength and imperviousness to the elements — of plastic tarps used as the covering for a dwelling, compared to a wood shake or shingle roof.
The majority instead adopts what it calls a “functional approach” to defining a roof: “When a roof is sufficiently durable to serve the functional purposes [of covering and protecting a building against weather-related risks], it is still a ‘roof within the ordinary understanding of that term,”
This policy covers a “dwelling” and describes the roof of the covered dwelling as “wood shingle or shake.” No reasonable juror could conclude that the insurer and the homeowner, when they entered into the insurance contract, intended the term “roof,” as it applies to this insured “dwelling,” to cover a single sheet of galvanized steel, a canvas tarp, or a piece of plywood. Similarly, no reasonable juror could conclude that the parties intended the term “roof’ to include the plastic tarps that the homeowner stapled to the plywood sublayer after he removed the wood shakes as a temporary measure until he could install new wood shakes.
Even without those considerations, the majority still returns to the very concept of permanency that it had just rejected in relying on the opinion of the homeowner’s expert that the plastic sheeting stapled to the plywood was “functionally permanent.” 349 Or at 45 (quoting expert affidavit). The expert’s wording reveals what should be apparent to all: that no roof lasts forever, but that homeowners and insurers routinely distinguish between materials and types of construction that are intended to be “permanent” and materials and types of construction that are intended to be “temporary.” The majority, appropriately, does not want to decide whether “permanency” is one or two years or five or ten. 349 Or at 44. And this case does not require us to make that distinction. Rather, notwithstanding the expert’s affidavit, it is plain that the plastic tarps were not intended to be permanent — they were a temporary expedient, which the homeowner installed on his own after he removed the shakes as part of “replacing the roof.” In agreeing to provide coverage for certain losses when the “roof’ was damaged, the insurer
In his complaint, homeowner tellingly states that he had removed the shakes because he was “replacing the roof.”
To be sure, the insurer might have been willing to provide coverage for the dwelling and its contents, notwithstanding the fact that plastic sheeting rather than wood shakes covered the sublayer, but the insurer likely would have required a higher premium to offset the greater risk that the less robust material would be damaged by a storm.
This dissent responds to the analysis undertaken in the majority opinion. One might also question, however, the majority’s premise that “whether a particular material is ‘suitable for the construction of a roof is a factual issue for the jury.” 349 Or at 45. On the contrary, this court has said that the interpretation of an insurance policy is “a question of law.” Hoffman, 313 Or at 469. Accordingly, as the Court of Appeals concluded, the determination of whether the temporary covering over plaintiffs house was a “roof’ for purposes of the insurance policy is for the court, not for the jury. Certainly, if there was a dispute over what the covering consisted of, when it was installed, or some other issue of fact, that question would be for the jury. But here, where there is no such dispute, to submit to the jury the legal question of whether the covering came within the meaning of the term “roof’ in the policy seems inconsistent -with. Hoffman.
The majority reviews three cases cited by the insurer, which it either dismisses as not persuasive because they rely on “permanency” as an aspect of a
The expert also inaccurately described the plastic sheeting as being six millimeters thick, rather than six mils thick- — an error of approximately 3,930 percent.
Reference
- Full Case Name
- Beth DEWSNUP and Tim Dewsnup, Petitioners on Review, v. FARMERS INSURANCE COMPANY OF OREGON, Respondent on Review
- Cited By
- 24 cases
- Status
- Published