Is Wind Driven Rain Covered? Is Water Damage Occurring Over Many Years From Rainstorms Covered?
A motion for summary judgment motion1 caught my attention because the argument is that wind driven rain and water damage occurring for many years is covered by a condominium’s insurance policy. The case is pending in Washington federal court and applies Washington state insurance law.
The introduction to the motion indicated the following:
This lawsuit arises out of an insurance claim for hidden damage to exterior sheathing and framing from wind-driven rain. Country Casualty Insurance Company and Country Mutual Insurance Company (collectively referred to as ‘Country’) insured the Westboro Condominium Association’s (‘Association’) buildings from August 19, 2018 to August 19, 2019. In December 2019, after discovering hidden water damage in the exterior walls of the Westboro buildings, the Association tendered a claim to Country.
…
Country issued an all-risk property policy which covers all damage except for what is excluded. The policy excludes weather conditions but only in conditions not present here such as when weather causes mudslide or mudflow….. The policy also has an exclusion for ‘interior rain’ which this Court ruled in Greenlake Condo. Ass’n v. Allstate Ins. Co….(W.D. Wash. Dec. 23, 2015) does not exclude wind-driven rain damage to exterior wall sheathing and framing at issue here. The fact that Country’s all-risk policy excludes rain and weather but only in certain inapplicable circumstances evinces Country’s intent to cover wind driven rain damage to exterior wall sheathing and framing.
The conclusion to the motion argued:
As demonstrated above, wind-driven rain and weather conditions are covered causes under Country’s all-risk policy. Pursuant to Vision One, Greenlake, and Sunwood, coverage for loss or damage caused by a combination of wind-driven rain and inadequate construction is mandated under the concurrent cause doctrine because Country’s policy does not exclude such damage. Additionally, because Country’s inadequate construction exclusion contains no inverse EPC provision and otherwise contains a resulting loss clause, Country cannot argue that coverage is excluded if inadequate construction is the EPC in a loss otherwise involving covered wind-driven rain. Alternatively, given that Country admits that inadequate construction did not initiate a sequence of events that led to water damage at Westboro or cause the wind-driven rain events that caused damage, Country cannot establish that inadequate construction is the EPC. Therefore, there is coverage as a matter of law for the wind-driven rain damage at issue.
(EPC means Efficient Proximate Cause)
This is an argument for coverage. it is based on Washington’s somewhat unique property insurance precedent. The entire motion is worth reading for those studying wind driven rain coverage issues.
I will follow up with this case when the insurance company files its reply.
Thought For The Day
The way I see it, if you want the rainbow, you gotta put up with the rain.
—Dolly Parton
1 Westboro Condominium Ass’n v. Country Cas. Ins. Co., No. 2:21-cv-00685 [Motion for Partial Summary Judgment] (W.D. Wash. Aug. 8, 2022).
