ceiling of a commercial building owned by Feenix partially
collapsed. Feenix sought coverage under the insurance
policy's coverage for collapse due to decay, claiming the
collapse was caused by a gradual decline in strength,
soundness. Berkley denied coverage for the loss. The trial
court granted summary judgment to Berkley on the coverage
issue. We reverse.
Parkside LLC (Feenix) owns a single story commercial building
in Auburn, Washington. The building was built approximately
40 years ago, around 1979. On or about July 4, 2015, a
portion of the building's roof truss system failed, and
that portion of the roof collapsed. At that time, Feenix was
insured by a Continental Western Insurance Company policy
issued by Berkley North Pacific (Berkley). Feenix submitted a
claim to Berkley. Berkley retained Independent Adjuster Rob
Stone from McLarens Young and Engineer Mark Schaefer with
Pacific Engineering Technologies Inc. (PET) to investigate
and Schaefer initially inspected the building on July 8,
2015. Schaefer again inspected the building on July 13, 21,
and 27, 2015. Based on his inspections and research, Schaefer
performed a structural analysis of the roof truss system. In
his opinion, the roof trusses failed when the top chord
members fractured as a result of applied tension
perpendicular to the wood grain immediately adjacent to the
rear exterior bearing wall. He determined that the roof
trusses failed because of two concurrent factors: (1) the
configuration of the truss plate connection adjacent to the
rear exterior bearing wall had inadequate strength to resist
the applied loads, and (2) higher than normal temperatures
reduced the strength of the wood trusses by up to 30 percent.
letter dated August 19, 2015, Berkley denied Feenix's
claim because the loss was caused by "defective methods
in construction and excessive temperatures in the
attic," which are not covered causes of loss under the
policy's collapse coverage.
retained CT Engineering Inc. to conduct an independent
investigation of the loss shortly after receiving
Berkley's denial. CT Engineering concluded,
[W]ater penetrated thru [sic] the upper layer of roofing and
collected between the two layers providing a concealed,
encapsulated water delivery system. The water between the
roofing layers sought the drain location although [sic]
became trapped. As the water volume increased, so did the
pressure on the old roofing layer which we believe, slowly
allowed the water to penetrate into the interior of the
building near the roof drains. The water wicked through the
blocking and delivered moisture to the truss bearing ends. In
support of this, water staining is clearly visible in both
the blocking and truss bearing ends [on] each side of the
Engineering also wrote, "It is our opinion that the
cause of the truss collapse is due to the combined effects of
both an elevated temperature in the attic space due to solar
radiation gain (125 -150 degrees) as well as a moisture
content exceeding 19% for an extended period of time."
Based on CT Engineering's findings, Feenix requested that
Berkley reconsider its denial of coverage.
result of Feenix's letter, Berkley reopened its
investigation and instructed PET to determine whether
"'hidden decay"' contributed to the roof
collapse. On July 13, 2016, PET revisited the building site
and inspected portions of the original roof sheathing and
roof trusses still onsite. Schaefer did not alter his
opinions on the cause of the collapse, and noted the
• Visual examination of the failure surfaces in the top
chord members of trusses in place shortly after the collapse
showed no evidence of wood decay in the failure surface.
• Examination of the failure surfaces in the top chord
members truss pieces stored on site in 2016 showed no
evidence of wood decay in the failure surface.
• Examination of the failure surfaces in the top chord
members truss pieces stored at the MDE [Inc.] in 2016 showed
no evidence of wood decay in the failure surface. The
darkened wood along the shafts of nails that were exposed in
the failure plane appears to be iron staining, which is a
common phenomenon in wood where elevated moisture is present
at some point. Iron staining does not reduce the strength of
the affected wood.
PET's supplemental report, Berkley confirmed its denial
of Feenix's claim.
September 23, 2016, Feenix sued Berkley. Berkley and Feenix
filed cross motions for summary judgment on the issue of
coverage for the building roof collapse. On August 4, 2017,
the trial court granted Berkley's motion for summary
judgment and denied Feenix's motion. On September 18,
2017, the trial court entered an amended order on the
parties' cross motions, which reflected all submissions
and materials considered by the trial court at the summary
judgment hearing. The amended order did not alter or modify
the legal conclusions and findings of fact in the trial
court's August 4, 2017 orders. Feenix appeals.
makes two arguments. First, it argues that the trial court
erred in finding the term "decay" unambiguous in
Berkley's insurance policy. Second, it argues that the
trial court erred by construing the term "system"
against Feenix and in favor of Berkley.
Standard of Review
order granting summary judgment is reviewed de novo,
"with the reviewing court performing the same inquiry as
the trial court." Ski Acres, Inc. v. Kittitas
County. 118 Wn.2d 852, 854, 827 P.2d 1000 (1992). When
we review a summary judgment order, we must consider all
evidence in favor of the nonmoving party. Keck v.
Collins. 184 Wn.2d 358, 368, 357 P.3d 1080 (2015).
Summary judgment is appropriate if there are no genuine
issues of material fact and the moving party is entitled to
judgment as a matter of law. CR 56(c); TracFone Wireless.
Inc. v. Dep't of Revenue. 170 Wn.2d 273, 281, 242
P.3d 810 (2010).
in Washington construe insurance policies as the average
person purchasing insurance would, giving the language a
fair, reasonable, and sensible construction. Vision One.
LLC v. Phila. Indem. Ins. Co., 174 Wn.2d 501, 512, 276
P.3d 300 (2012). Undefined terms are to be given their
ordinary meaning, Id. The entire contract must be
construed together in order to give force and effect to each
clause. Wash. Pub. Util. Dists.' Utils. Sys. v. Pub.
Util. Dist. No. 1 of Clallam County., 112 Wn.2d 1, 10,
771 P.2d 701 (1989). The court must enforce the contract as
written if the language is clear and unambiguous.
Id. If the language on its face is fairly
susceptible to two different but reasonable interpretations,
the contract is ambiguous, and the court must attempt to
discern and enforce the contract as the parties intended,
Id. at 10-11. In the event of an ambiguity, the
contract will be construed in favor of the insured.
Id. at 11.
insurance policies generally fall into two categories:
named-peril and all-risk. 174 Wn.2d at 513. "Named
perils" policies provide coverage only for the specific
risks enumerated in the policy and exclude all other risks,
Id. All-risk policies, on the other hand, provide
coverage for all risks unless the specific risk is excluded,
Id. In both types of property insurance, coverage is
commonly triggered-or excluded-when a specified peril
'"causes'" a loss. Id. at 514.
whether coverage exists is a two-step process. McDonald
v. State Farm Fire & Cas. Co., 119 Wn.2d 724, 731,
837 P.2d 1000 (1992). The insured must show the loss falls
within the scope of the policy's insured losses.
Id. To avoid coverage, the insurer must then show
the loss is excluded by specific policy language,
the coverage form states, "[Berkley] will pay for direct
physical loss of or damage to Covered Property at the
premises described in the Declarations caused by or resulting
from any Covered Cause of Loss."
Causes of Loss-Special Form (COL Form) states, A. Covered
Causes of Loss
When Special is shown in the Declarations, Covered Causes of
Loss means Risks of Direct Physical Loss unless the loss is:
1. Excluded in Section B., Exclusions; or
2. Limited in Section C, Limitations; that ...