Opinion
No. 58363-8-I.
April 23, 2007.
Appeal from a judgment of the Superior Court for King County, No. 05-2-02003-2, Bruce W. Hilyer, J., entered June 8, 2006.
Affirmed by unpublished opinion per Schindler, A.C.J., concurred in by Cox and Dwyer, JJ.
Todd and Leslie Gibson appeal the trial court's decision on summary judgment to dismiss their coverage claims against Farmers Insurance Company of Washington (Farmers). The Gibsons contend the damage to their barn was an insured loss covered under "the weight of . . . animals" provision. In the alternative, the Gibsons contend use of "animal" and "domestic animal" in the policy creates an ambiguity and precludes Farmers from denying coverage. The Gibsons also argue that the policy exclusion for direct or indirect loss from "domestic animals" is ambiguous and only applies to loss caused by slow deterioration. Regardless of whether use of "animal" and "domestic animal" in the policy is ambiguous, because the weight of an animal did not cause the collapse of the barn, the coverage provision does not apply. We also conclude the exclusion is not limited to loss caused by slow deterioration. We affirm.
FACTS
Todd and Leslie Gibson reside in Kent, Washington and own several horses, including a former race horse. A small barn is located on their property. The barn was built in 1978, using telephone poles as the support beams. Farmers insured the Gibsons under the third edition "Protector Plus Homeowners Package Policy" (the policy). The policy contains a coverage provision for structures on the property separate from the residence, "Separate Structures." The Farmers' policy also contains an "Additional Coverages" provision that provides coverage for the collapse of buildings.
The barn is 22 feet by 44 feet.
On June 8, 2004, the Gibsons hired a farrier to shoe the race horse. The farrier tied the horse with a rope to a vertical support beam pole. As the farrier was shoeing the horse, the horse reared and pulled back on the rope and would not stop pulling. The relentless pulling by the horse on the vertical support pole caused the horizontal poles to fall and part of the barn roof collapsed. According to Leslie Gibson,
. . . the horse just decided at that moment it wasn't going to be there anymore. And he just started a relentless pull and wouldn't give up. And I remember staying close to the horse. I was trying to unlatch him from the rope, but the force — he just kept pulling back and never gave any tension to the rope for me to unhook him. And I do remember hearing some crashing going on, but I guess my main focus was constantly trying to release him.
The next day, the Gibsons submitted a claim for the partial collapse of the barn roof under their policy. On June 10, Farmers denied coverage for the claim.
On January 10, 2005, the Gibsons filed a "Complaint for Declaratory Judgment, Bad Faith, Relief Under the Consumer Protection Act and Breach of Contract Damages," against Farmers.
On April 5, 2006, Farmers filed a motion for partial summary judgment on coverage under the policy and breach. The Gibsons filed a cross motion for summary judgment. The court granted Farmers' motion for partial summary judgment. The court ruled as a matter of law that the policy did not provide coverage for the loss of the barn. The Gibsons then stipulated to dismissal of their other claims and appeal.
ANALYSIS
The Gibsons contend they are entitled to coverage under the insurance policy provision that covers collapse of a structure caused by the "weight of . . . animals." In the alternative, the Gibsons claim the provision is ambiguous.
We review summary judgment de novo. Wright v. Safeco Ins. Co. of America, 123 Wn. App. 263, 270, 109 P.3d 1 (2004). Summary judgment is properly granted when the pleadings and affidavits show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). Only when reasonable minds could reach but one conclusion on the evidence should the court grant summary judgment. Smith v. Safeco Ins. Co., 150 Wn.2d 478, 485, 78 P.3d 1274 (2003). Interpretation of an insurance policy is a question of law that we also review de novo. McDonald v. State Farm Fire Cas. Co., 119 Wn.2d 724, 730, 837 P.2d 1000 (1992).
We construe insurance policies in the same manner as contracts. Weyerhaeuser Co. v. Union Ins. Co., 142 Wn.2d 654, 655, 15 P.3d 115 (2000). The policy should be read as a whole and given a fair, reasonable, and sensible construction as would be given to the contract by the average person purchasing insurance. American Nat'l Fire Ins. Co. v. B L Trucking and Construction Co., Inc., 134 Wn.2d 413, 428, 951 P.2d 250 (1998). Courts determine coverage under the plain meaning of the policy. Capelouto v. Valley Forge, Ins. Co., 98 Wn. App. 7, 13-14, 990 P.2d 414 (1999). Undefined terms in an insurance policy are given a plain, ordinary, and popular meaning as defined in standard English language dictionaries. Overton v. Consol. Ins. Co., 145 Wn.2d 417, 428, 38 P.3d 322 (2002).
If the policy is clear and unambiguous, the court must enforce it 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). An ambiguity exists only if the policy language is susceptible to two different reasonable interpretations. Daley v. Allstate Ins. Co., 135 Wn.2d 777, 784, 958 P.2d 990 (1998). If an ambiguity exists, it is construed in favor of the insured. American Nat. Fire Ins. Co., 134 Wn.2d at 428. But if the language of an insurance policy is clear and unambiguous, those terms must be given the effect of their plain meaning. Progressive Cas. Ins. Co. v. Jester, 102 Wn.2d 78, 79-80, 683 P.2d 180 (1984).
The determination of whether coverage exists is a two-step process. First, the insured must establish that the policy covers the loss. If the coverage is established, the insurer must show specific policy language excludes the loss to avoid liability. Wright, 124 Wn. App. at 271.
The policy issued to the Gibsons covers loss for separate structures, such as the Gibsons' barn.
SECTION I — PROPERTY
Coverage B — Separate Structures
We cover other structures on the residence premises separated from the dwelling. . . .
Perils Insured Against
Coverage B — Separate Structures
We insure for accidental direct physical loss to property described in Coverage A and B, subject to the exclusions and limitations described elsewhere in Section I of this policy. . . .
The Additional Coverages section includes a provision that expressly insures the collapse of the separate structures.
9. Collapse of Buildings — We insure for accidental direct physical loss of covered property under Section 1 involving collapse of a building or any part of a building caused only by one or more of the following: . . .
b. weight of contents, equipment, animals or people.
Emphasis added. The parties do not dispute that that "weight" modifies "contents, equipment, animals or people."
The Gibsons claim they are entitled to coverage because the collapse of the barn was caused by the "weight" of their horse. The Gibsons contend that the heaviness of the horse caused the support beams to collapse. The Gibsons also argue "weight" and "force" are synonymous. Farmers argues that weight and force are not synonymous. Farmers contends the horse's force or strength, rather than the horse's weight or heaviness, caused the telephone pole support beams to fall and part of the barn's roof to collapse.
Weight is not defined in the policy. Webster's Unabridged Third New International Dictionary, (1993), defines weight as:
1. . . . the standard or established amount that a given thing should weigh
2. a quantity weighing a fixed and usually specified amount
3. a unit of weight o mass
. . .
6. a relative heaviness . . . mass
Force is defined as:
1. strength or energy; active power
. . .
2. power, violence, compulsion, or constraint exerted upon or against a person or thing. . . .
As defined, weight is a static concept involving heaviness or mass, while force is the exertion of strength or energy. The average person reading the policy would assume that the "collapse of buildings" provision covers the collapse of a building caused by the mass or heaviness of "contents, equipment, animals or people." Although animals move of their own volition, the average person reading the provision would assume that collapse would be covered when an animal's heaviness or mass caused the collapse. It is not reasonable to conclude that the force of a horse that caused the support beams to fall is covered by this provision. The horse's exertion of force to pull down the support beam in the barn is not the same as weight.
In addition, weight and force are used differently in the policy. If Farmers intended to include force instead of weight in the collapse of buildings provision, it would have done so as it did elsewhere in the policy. We will not add language to an insurance policy that the insurer did not include. American Nat'l Fire Ins., 134 Wn.2d at 430. For instance, Farmers also covers "collapse due to the weight of rain which collects on the roof." And the policy covers damage to personal property in a building caused by the "weight of ice, snow or sleet." But by contrast, damage to personal property caused "directly or indirectly by rain, snow, sleet, sand or dust unless the force of wind or hail damages the roof or walls . . ." is excluded. We conclude that the weight of animals language in the collapse of buildings is plain and unambiguous and only provides for coverage when heaviness or mass causes the loss. Here, because the relentless exertion of the horse pulling on the rope attached to the telephone pole caused the support beams to fall, the loss is not covered by the policy.
Because we conclude that the damage to the barn was not caused by the "weight" of the horse and is not caused under the collapse of buildings provision, whether the Gibsons' horse is characterized as an "animal" or a "domestic animal" is irrelevant.
In the alternative, the Gibsons argue they are entitled to coverage because "animal" is used in the collapse of buildings coverage provision but "domestic animals" is used in an exclusion for direct or indirect loss. But regardless of whether a horse is characterized as an animal or a domestic animal, on this record, the coverage provision for the collapse of buildings caused by the weight of animals does not apply.
Webster's dictionary defines animal as "any of a kingdom (Animalia) of living things; one of the lower animals as distinguished from human beings."
Webster's defines domestic animal as any of various animals (as the horse, ox, or sheep) which have been domesticated by man so as to live and breed in a tame condition. . . ." In Hojem v. Kelly, 21 Wn. App. 200, 205, 584 P.2d 451 (1978), the court included horses under the definition of "domesticated animals." In Patrick v. Sferra, 70 Wn. App. 676, 687, 855 P.2d 320 (1993), the court cites to Hojem in holding that: "horses are considered domestic animals."
The Gibsons also argue that the exclusion for direct or indirect loss from domestic animals only applies to slow deterioration caused by domestic animals. The policy excludes direct and indirect loss caused by domestic animals.
Applying to Coverage A and B —
Dwelling and Separate Structures
We do not cover direct or indirect loss from:
. . .
6. Wear and tear; marring; deterioration; inherent vice; latent defect; mechanical breakdown; rust; mold; wet or dry rot; contamination; smog; smoke from farm smudging or industrial operations; settling; cracking; shrinking; bulging or expansion of pavements, patios, foundations, walls, floors, roofs or ceiling; birds, vermin, rodents, insects or domestic animals. . . .
Emphasis added.
While some of the events in the provision can be characterized as slow deterioration, the plain language of the exclusion also applies to other events that may be sudden, such as "cracking," "marring," or "mechanical breakdown."
CONCLUSION
We conclude the language of the policy is not ambiguous. Because the collapse of the barn was not caused by the weight of the horse and the exclusion applies, the trial court correctly decided the policy bars coverage. We affirm.