Diep v. California Fair Plan Assn.
15 Cal.App.4th 1205
Cal.App.2.Dist.,1993.
May 12, 1993. (Approx. 3 pages)19 Cal.Rptr.2d 591
BAO TAN DIEP, Plaintiff and Appellant,
v.
CALIFORNIA FAIR PLAN ASSOCIATION, Defendant and Respondent.
SUMMARY
In a business person's suit against his insurer following a loss occasioned
when, during roof repairs to his warehouse, wind blew away some temporary
plastic sheeting and rain entered, the trial court granted summary
judgment for the insurer. The policy covered damage to the property
in the warehouse caused by rain entering the building through openings
in the roof made by the direct action of wind. (Superior Court of
Los Angeles County, No. C 732809, Eric E. Younger, Judge.)
The Court of Appeal affirmed, holding that the word "roof"
in the insurance policy could not have been reasonably construed by
the parties to include a temporary cover of plastic sheeting. The
court held that the insurer was not collaterally estopped from relitigating
the issue, even though an appellate court had previously found against
it on the identical issue in an opinion ordered depublished by the
Supreme Court. (Opinion by Ortega, Acting P. J., with Vogel (Miriam
A.) and Masterson, JJ., concurring.)HEADNOTES
Classified to California Digest of Official Reports
(1) Summary Judgment § 26--Appellate Review--Scope of Review.
After examining the facts before the trial judge on a summary judgment
motion, an appellate court independently determines their effect as
a matter of law. The trial court's stated reasons supporting its ruling
do not bind the reviewing court. The appellate court may examine only
papers before the trial court when it considered the motion, and not
documents filed later. Moreover, it construes the moving party's affidavits
strictly, construes the opponent's affidavits liberally, and resolves
doubts about the propriety of granting the motion in favor of the
party opposing it. *1206
(2) Insurance Contracts and Coverage § 65--Coverage of Contracts--Fire
and Other Casualty Insurance--Risks and Causes of Loss--Rain Damage--Opening
in Roof of Warehouse.
In a business person's suit against his insurer following a loss occasioned
when, during roof repairs to his warehouse, wind blew away some temporary
plastic sheeting and rain entered, the trial court properly granted
summary judgment for the insurer. The policy covered damage to the
property in the warehouse caused by rain entering the building through
openings in the roof made by the direct action of wind. The opening
in the warehouse roof, however, was made not by wind but by construction
workers, and the plastic sheeting they used as a temporary covering
could not be included within the word "roof" as it would
have been reasonably construed by the parties to the insurance contract.
Moreover, the insurer was not collaterally estopped from relitigating
the issue, even though an appellate court had previously found against
it on the identical issue in an opinion ordered depublished by the
Supreme Court.
[What constitutes direct loss under windstorm insurance coverage,
note, 65 A.L.R.3d 1128.]
COUNSEL
Eugene Button for Plaintiff and Appellant.
Cummins & White Francis X. Sarcone, Michael M. Bergfeld and Kent
M. Bridwell for Defendant and Respondent.
ORTEGA, Acting P. J.
We affirm the trial court's grant of summary judgment to the defendant.
Background
Plaintiff Bao Tan Diep, doing business as Maxim's Mattress Co., housed
his business in a warehouse, which was covered by an insurance policy
issued by defendant California Fair Plan Association. Plaintiff leased
the property from Wendy and Allen Hart. The Harts contracted with
Gruver Construction to repair the roof. Gruver removed a portion of
the roof and covered the opening with plastic sheeting. According
to plaintiff, during two rain storms, "the plastic sheeting was
blown open, rain entered and flooded the property, causing extensive
damage to appellant's warehoused mattresses." *1207
Plaintiff sued the Harts and Gruver, and later amended to add defendant.
Plaintiff secured an arbitration award against the Harts and Gruver,
which has been satisfied. The Harts and Gruver are not party to this
appeal.
Defendant sought summary judgment on two grounds, that failure to
give proper and timely notice of the claim defeated coverage, and
that since the plastic sheeting did not constitute a "roof,"
the policy did not cover the occurrence. Although the trial court
granted summary judgment on the first ground, we affirm on the second.
Standard of Review
(1) After examining the facts before the trial judge on a summary
judgment motion, an appellate court independently determines their
effect as a matter of law. (Bonus-Bilt, Inc. v. United Grocers, Ltd.
(1982) 136 Cal.App.3d 429, 442 [186 Cal.Rptr. 357].)
Despite this independent review, the appellate court applies the same
legal standard as did the trial court. Code of Civil Procedure section
437c, subdivision (c), requires the trial court to grant summary judgment
if no triable issue exists as to a material fact, and if the papers
entitle the moving party to a judgment as a matter of law. Emphasizing
triable issues rather than disputed facts, summary judgment law turns
on issue finding rather than issue determination. (Walsh v. Walsh
(1941) 18 Cal.2d 439, 441-442 [116 P.2d 62].)
The appellate court must examine only papers before the trial court
when it considered the motion, and not documents filed later. (Wiler
v. Firestone Tire & Rubber Co. (1979) 95 Cal.App.3d 621, 627 [157
Cal.Rptr. 248].) Moreover, we construe the moving party's affidavits
strictly, construe the opponent's affidavits liberally, and resolve
doubts about the propriety of granting the motion in favor of the
party opposing it. (Stationers Corp. v. Dun & Bradstreet, Inc.
(1965) 62 Cal.2d 412, 417 [42 Cal.Rptr. 449, 398 P.2d 785].)
The trial court's stated reasons supporting its ruling, however, do
not bind this court. We review the ruling, not its rationale. (Barnett
v. Delta Lines, Inc. (1982) 137 Cal.App.3d 674, 682 [187 Cal.Rptr.
219].)
Discussion
We find ourselves in the unusual position of discussing and disagreeing
with a case which the state Supreme Court has ordered depublished
(Mitchell *1208 v. California Fair Plan Association [FN*] (Cal.App.)
(hereafter Mitchell). In Mitchell, Division Three of this district
ruled on the identical roof/plastic sheeting issue involving the same
insurer. Mitchell found the term "roof" in the insurance
policy ambiguous, construed it against the insurer and in favor of
coverage, and ruled that, under the circumstances, plastic sheeting
constituted a roof for purposes of the insurance policy. The case
was ordered published. However, the California Supreme Court decertified
Mitchell consigning it forever, but for this brief reemergence, to
limbo. Nevertheless, plaintiff asks us to follow Mitchell, applying
the principle of collateral estoppel, to prevent defendant from relitigating
the same issue it lost in Mitchell. We decline to do so and reach
the merits of the instant appeal.FN* Reporter's Note: Opinion (B036881)
deleted upon direction of Supreme Court by order dated September 7,
1989.The policy provides, in relevant part, that the "Company
shall not be liable for loss to the interior of the building(s) or
the property covered therein caused: [¶] (1) by rain, snow, sand
or dust, whether driven by wind or not, unless the building(s) covered
or containing the property covered shall first sustain an actual damage
to roof or walls by the direct action of wind or hail and then shall
be liable for loss to the interior of the building(s) or the property
covered therein as may be caused by rain, snow, sand or dust entering
the building(s) through openings in the roof or walls made by direct
action of wind or hail[.]"
(2) If the plastic sheeting constituted a roof, coverage ensues, because
it is undisputed that the wind blew the sheeting open, allowing the
rain to enter and cause the damage.
While "roof" has many different meanings, (e.g., roof of
the mouth) dictionary definitions are consistent with respect to that
which people usually expect to find on top of a building. The Random
House College Dictionary (1982) defines roof as "the external
upper covering of a house or other building." (At p. 1145.) Webster's
Third New International Dictionary (1976) defines it as "the
outside cover of a building or structure including the roofing and
all the materials and construction necessary to maintain the cover
upon its walls or other support[.]" (At p. 1971.) The American
Heritage Dictionary, Second College Edition (1982) defines it as the
"exterior surface and its supporting structures on the top of
a building." (At p. 1070.)
We could go on, but a roof is commonly considered to be a permanent
part of the structure it covers. "Roof" is not an ambiguous
or vague word. The plastic sheeting was used here because part of
the roof had been *1209 removed. The breach in the roof was not caused
by wind or hail, but by the workmen who removed that portion of the
roof needing repair. The construction contract said, "This building
requires the removal of the roofing of a quarter of the building."
It provided that in case of rain, Gruver would "place plastic
sheeting on the open area of the roof." Mitchell notwithstanding,
everyone connected to this project, including the insured, realized
part of the roof was missing, and could not have considered the plastic
sheeting constituted anything other than a nonstructural band-aid.
The parties to the insurance contract could not have originally intended
the result plaintiff seeks here.
Mitchell cited, but declined to follow, two cases, one from Mississippi
(Camden Fire Ins. Ass'n v. New Buena Vista Hotel Co. (1946) 199 Miss.
585 [24 So.2d 848]), the other from Florida (New Hampshire Ins. Co.
v. Carter (Fla.Dist.Ct.App. 1978) 359 So.2d 52).
In Camden, the insured contracted to have a portion of his roof repaired.
The workmen opened a 12- by 46-foot hole in the roof. A storm came
out of nowhere. The workmen tried to cover the hole with felt, "even
casting themselves upon it" to keep it from blowing away. The
policy had a similar provision to the instant policy, that the insurer
would be liable only for damage " 'caused by water or rain entering
the building through openings in the roof or walls made by the direct
action of the wind.' " (Camden Fire Ins. Ass'n v. New Buena Vista
Hotel Co., supra, 24 So.2d at p. 849.) The Mississippi Supreme Court,
in holding for the insurer, held that the "repairmen opened up
the hole in the roof here,-not the windstorm. The water entered the
interior of the building through the opening made by these workmen
.... [¶] To be, or become, a roof, 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,-but not including any extraordinary
or unprecedented eventuality. ..." (Id. at pp. 849-850.)
General and recurrent experiences of the past in Southern California
include, in spite of periodic drought, wind and rain storms. No reasonably
prudent building owner or lessee would have considered plastic sheeting
adequate protection for any length of time.
In New Hampshire, the insureds "had removed the shingles from
the roof of the subject dwelling and had partly covered the wood decking
with tar paper in anticipation of placing new roofing materials on
the roof when a rain storm occurred." (*1210 New Hampshire Ins.
Co. v. Carter, supra, 359 So.2d at p. 53.) Their policy contained
a provision similar to that found in Camden and here. The insurer
paid for the damage to the building, but denied coverage for water
damage to the contents of the house. Citing Camden, the Florida District
Court of Appeal ruled for the insurer, holding that "the rain
leaked through the roof solely because the [insureds] had removed
the protective covering of the shingles." (New Hampshire Ins.
Co. v. Carter, supra, 359 So.2d at pp. 53-54.) Any "damage"
to the roof allowing rain to enter was done not by wind or hail, but
by the insureds.
A contrary holding is found in Homestead Fire Ins. Co. v. De Witt
(1952) 206 Okla. 570 [245 P.2d 92], where the policy had been taken
out specifically to cover the construction of an addition to a school.
"[I]n the construction of the addition it was necessary that
the roof thereof be tied into and joined with the roof of the school
building previously erected or existing[.]" (245 P.2d at p. 93.)
While the policy had the standard wind-water damage exclusion, it
also covered "materials, equipment, supplies and temporary structures
of all kind, incident to the construction of said building[.]"
(Ibid.) Under the circumstances, the Oklahoma Supreme Court held that
"it was in the contemplation of the parties ... to cover all
risks incurred ... in connection with the construction of the addition
.... [¶] ... [¶] [T]he opening in the roof was necessarily
made in order that the roofs of the two buildings might properly be
tied together, and ... this opening was covered by a temporary roof
of canvas" through which came the damaging rain. (Id. at p. 94,
italics added.)
We are persuaded by Camden and New Hampshire that, under the circumstances
of the instant matter, the word "roof" could not have been
reasonably construed by the parties to include a temporary cover of
plastic sheeting. Unlike Homestead, the policy here was not issued
specifically to insure against the hazards of construction and did
not cover all materials incident thereto. While we don't necessarily
agree with Homestead, the coverage there contemplated an on-going
construction of considerable magnitude, and, in that light, the reviewing
court gave the policy a broader interpretation.
Here, the parties knew the structure would be without a roof for a
short time. Indeed, as respondent points out, plaintiff, responding
to an interrogatory asking whether he contended the plastic sheeting
was inadequate, answered, in part, "[Plaintiff] relied upon Gruver
to do what was required to protect plaintiff's property while the
roof was stripped during the rainy season. Plaintiff had no knowledge
that Gruver had removed the roof without first obtaining an approved
plan for replacement of the roof." Plaintiff clearly, as in Camden,
did not, "consider [the plastic sheeting], if *1211 left in that
condition for a month or months, or longer, as adequate against all
risks of wind and rain." (Camden Fire Ins. Ass'n v. New Buena
Vista Hotel Co., supra, 24 So.2d at p. 850.)
"To construe
the policy as providing coverage only because the insured's property
was damaged and the insured was not negligent would amount to enlarging
the coverage of the policy from 'named perils' to 'all risks.' The
clear and unambiguous terms of the policy will not permit such a construction."
(New Hampshire Ins. Co. v. Carter, supra, 359 So.2d at p. 54.) In
the context of this building and this policy, plastic sheeting is
not a roof. The opening to the interior of the building was not caused
by wind or hail, but by workmen. The policy, by its terms, did not
cover the occurrence.
We reject plaintiff's argument that collateral estoppel prevents defendant
from relitigating the Mitchell issue. "Generally the objective
of res judicata and its affiliate collateral estoppel, is to prevent
'vexatious litigation with its attendant expense both to the parties
and the public.' [Citation.] Where this objective will not be aided
by application of these doctrines, and assertion thereof would 'defeat
the ends of justice or important considerations of policy,' they may
not be invoked. [Citations.]" (O'Connor v. O'Leary (1967) 247
Cal.App.2d 646, 650 [56 Cal.Rptr. 1].) We will not apply collateral
estoppel to prevent us from disagreeing with an unpublished case we
find unpersuasive.
In light of our resolution of the matter, we need not reach the issue
of whether plaintiff's failure to give required notice defeated coverage.
We have reviewed the trial court's ruling, not its rationale (Barnett
v. Delta Lines, Inc., supra, 137 Cal.App.3d at p. 682) and find summary
judgment was properly granted.
Disposition
The judgment is affirmed.
Vogel (Miriam A.), J., and Masterson, J., concurred. *1212
Cal.App.2.Dist.,1993.
Diep v. California Fair Plan Ass'n
END OF DOCUMENT
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