Allemand v. State Farm Insurance Companies
Allemand v. State Farm Insurance Companies
Opinion of the Court
¶1 This case revisits the recurring problem of fire-loss house repairs that must account for changes in building codes since the house was originally constructed, an issue that stretches back across Washington law for nine
|2 Respondents Rex and Brenda Allemand owned a house in Kittitas that was severely damaged by fire on June 20, 2007. Repair costs were estimated at $50,676.95. The house was built in 1940 and its foundation, crawl space, and electrical wiring did not comply with modern building codes. Due to those deficiencies, the city would not issue permits for the repairs. Instead, the building had to be razed.
f 3 It cost the Allemands $96,669.56 to replace the house under modern building requirements. Their State Farm homeowners policy provided a maximum of $89,866.00 under “Coverage A” to repair or replace the home “with similar construction.” The policy also excluded “increased costs resulting from enforcement of any ordinance or law” including “construction repair or demolition” from coverage except as provided by optional “Option OL.” That optional coverage provided an additional sum, equal to 10 percent of the policy maximum, for costs resulting from building code enforcement. The Allemands had purchased Option OL.
¶4 State Farm paid the Allemands $59,663.55, consisting of the estimated repair costs from the fire plus the maximum OL coverage for the code updates. The Allemands then filed an action for declaratory judgment and damages, arguing that State Farm was required to pay the maximum under both Coverage A and Option OL.
¶5 The trial court agreed, reasoning that the Option OL limits for building code upgrades did not limit the amount available under Coverage A. It awarded the Allemands an
ANALYSIS
¶6 The case turns on the meaning of the insurance policy. Well settled rules govern our review.
¶7 Interpretation of an insurance policy is a question of law reviewed de novo. Woo v. Fireman’s Fund Ins. Co., 161 Wn.2d 43, 52, 164 P.3d 454 (2007). Insurance policies are construed as contracts, so policy terms are interpreted according to basic contract principles. Weyerhaeuser Co. v. Commercial Union Ins. Co., 142 Wn.2d 654, 665-666, 15 P.3d 115 (2000). The policy is considered as a whole and is given a “ ‘fair, reasonable, and sensible construction as would be given to the contract by the average person purchasing insurance.’ ” Id. at 666 (internal quotation marks omitted) (quoting Am. Nat’l Fire Ins. Co. v. B&L Trucking & Constr. Co., 134 Wn.2d 413, 427, 951 P.2d 250 (1998)). If the language is clear, the court must enforce the policy as written and may not create ambiguity where none exists. Quadrant Corp. v. Am. States Ins. Co., 154 Wn.2d 165, 171, 110 P.3d 733 (2005). A clause is considered ambiguous only if it is susceptible to two or more reasonable interpretations. Id. If an ambiguity exists, the clause is construed in favor of the insured. Id. at 172. However, “the expectations of the insured cannot override the plain language of the contract.” Id.
¶8 The question of whether insurance coverage extends to costs necessary to bring a remodeled/rebuilt home into compliance with modern building codes has been discussed in a series of cases. Not surprisingly, the parties can each find some support for their position in existing case law.
¶10 Division One revisited the issue in Roberts v. Allied Group Insurance Co., 79 Wn. App. 323, 901 P.2d 317 (1995). There a home had been destroyed by fire. The homeowner had a policy guaranteeing replacement cost “ ‘for like construction.’ ” Id. at 325. The policy defined replacement cost as repairing or replacing the damaged property “ ‘with new materials of like kind and quality.’ ” Id. The court distinguished Starczewski on the basis that its policy had not been limited to the “like kind” of repair. Id. Building code compliance was not included in the definition of “like kind.” Id. (citing Gouin v. Nw. Nat’l Ins. Co. of Milwaukee, 145 Wash. 199, 259 P. 387 (1927)).
¶11 Gouin involved a house damaged by fire in Seattle. 145 Wash, at 200. The owner’s insurance covered replace
The requirements of the city went far beyond this. They required the foundations of the building to be entirely reconstructed and of different materials from that originally used; they required the upper parts of the building to be finished in a different manner than that in which it was originally finished; in fine, they required a practically new and more costly building. This, we cannot conclude, was within the contemplation of the contract.
¶12 In light of Gouin, the Roberts court summarily rejected the homeowner’s attempt to apply Starczewski to the “like construction” language used in that policy. 79 Wn. App. at 325. Instead, the court characterized the Starczewski discussion as dicta and noted that case had declined to follow contrary authority because its policy lacked the “like kind and quality” language found in the earlier cases. Id.
f 13 Division Two of this court likewise refused to apply Starczewski in Dombrosky v. Farmers Insurance Co. of Washington, 84 Wn. App. 245, 928 P.2d 1127 (1996), review denied, 131 Wn.2d 1018 (1997). There the policy had defined replacement cost in terms of “ ‘equivalent construction’ ” and had excluded any costs related to enforcement of
¶14 This division visited the issue in DePhelps v. Safeco Insurance Co. of America, 116 Wn. App. 441, 65 P.3d 1234 (2003). There the homeowners’ policy also defined replacement cost in terms of “ ‘equivalent construction,’ ” and the insurance company argued that Roberts and Dombrosky meant that it was not required to cover costs associated with code upgrades. Id. at 449 (emphasis omitted). However, the policy also indicated that damages would be settled “ ‘on the basis of any ordinance or law that regulates the construction, repair or demolition of this property.’ ” Id. (emphasis omitted). This court had no difficulty distinguishing the earlier cases and concluding that this provision “expressly covers the cost of compliance with ordinances and building laws.” Id.
fl5 The parties understandably draw their battle lines among the modern foursome of cases, with the Allemands using Starczewski and DePhelps, while State Farm relies upon Roberts and Dombrosky. As all of those cases show, the ultimate controlling language is that found in the policy. The Coverage A language states in part that
a. We will pay the cost to repair or replace with similar construction and for the same use on the premises . . . subject to the following:
(4) we will not pay for increased costs resulting from enforcement of any ordinance or law regulating the construction, repair or demolition of a building or other structure, except as provided under Option OL - Building Ordinance or Law Coverage.
Clerk’s Papers (CP) at 23.
1. Coverage Provided.
The total limit of insurance provided by this Building Ordinance or Law provision will not exceed an amount equal to the Option OL percentage shown in the Declarations of the Coverage A limit shown in the Declarations at the time of the loss .... This is an additional amount of insurance and applies only to the dwelling.
2. Damaged Portions of Dwelling.
When the dwelling covered under COVERAGE A - DWELLING is damaged by a Loss Insured we will pay for the increased cost to repair or rebuild the physically damaged portion of the dwelling caused by the enforcement of a building, zoning or land use ordinance or law if the enforcement is directly caused by the same Loss Insured and the requirement is in effect at the time the Loss Insured occurs.
CP at 24.
f 17 The policy at issue here covers “similar construction” and is the same as the “like” construction at issue in Gouin and Roberts and the “equivalent” construction in DePhelps and Dombrosky. Thus, the Coverage A component of this policy does not include building code upgrades as the policy in Starczewski did. Instead, Coverage A of the policy expressly indicates that it does cover building code upgrades caused by the same loss only under the optional OL coverage
¶19 The Allemands also argue that the Option OL coverage is ambiguous because it makes reference to the policy limits shown in the “Declarations,” but the coverage limits page is not entitled “Declarations” nor is that word used on the page. Any confusion they may have had — and there has been no factual finding on that point — does not create an ambiguity. They were aware from Option OL that the coverage was limited. They were also aware from the cover page, even if they did not know what a “Declarations” was, what the limits were. Even if there was subjective confusion on this point, there was no ambiguity. The cover page, however denominated, expressly stated the limits of both Coverage A and Option OL. There was no ambiguity.
¶20 The judgment is reversed.
Kulik, C.J., and Siddoway, J., concur.
Review granted at 171 Wn.2d 1028 (2011).
The Allemands also alleged that they were underinsured. The trial court dismissed that claim with prejudice. The Allemands did not cross appeal the dismissal.
This provision recognizes the efficient proximate cause rule; the Allemands’ argument that the policy conflicts with that rule is without merit. The policy actually applies the rule and covers building code upgrades that are required when repairing a covered loss.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.