Opinion
No. 64247-2-I.
November 1, 2010.
Appeal from a judgment of the Superior Court for King County, No. 00-2-18169-8, Dean Scott Lum, J., entered September 9, 2009.
Affirmed by unpublished opinion per Cox, J., concurred in by Dwyer, C.J., and Leach, J.
Property damage that an insured expects or intends is not covered under standard commercial and general liability policies. Likewise, there is no personal injury coverage for wrongful eviction under such policies where there is neither a landlord-tenant relationship nor other required indicia.
Overton v. Consolidated Ins. Co., 145 Wn.2d 417, 425, 38 P.3d 322.
Kitsap County v. Allstate Ins. Co., 136 Wn.2d 567, 593-94, 964 P.2d 1173 (1998).
Here, the insured expected property damage prior to the purchase of the policies at issue in this case. Thus, there was no "occurrence" under the terms of these policies warranting coverage. Moreover, the insured was not a landlord for purposes of any wrongful eviction claim under these policies. We affirm.
In the 1920s, the City of Tacoma and the Tacoma Department of Public Utilities ("Tacoma") built two dams on the North Fork of the Skokomish River. This is known as the Cushman Project ("the Project"). Tacoma was aware that the construction and operation of the Project would cause property damage to nearby residents. In 1921, Tacoma filed an action to condemn water and riparian rights for the Project. During that litigation, the Skokomish Indian Tribe ("the Tribe") raised concerns about forfeiture of riparian rights, decreased water flow, and the chance that the dams would fail and property would be flooded.
From 1975 to 1984, Tacoma purchased eight policies from Indemnity Insurance Company of North America and other insurers ("Insurers") that are now at issue. Seven of the policies were issued to the Department of Public Utilities and one was issued to the City of Tacoma.
In the late 1980s, Tacoma received a letter from the Washington Department of Ecology ("DOE") suggesting that the Project was responsible for (2002). aggradation in the Skokomish River. Aggradation occurs when reduced water flow leads to higher deposits of sediment causing the floor of the river to build up over time, eventually leading to flooding and elevated water tables. After subsequent studies, Tacoma discovered that aggradation in the Skokomish had been occurring since the late 1950s.
Tyler Harden, Limiting Tribal Rights Under the Federal Power Act: Skokomish Indian Tribe v. United States, 28 Energy L.J. 667, 667 (2007) (citing Skokomish Indian Tribe v. U.S., 410 F.3d 506, 509 n. 1 (9th Cir. 2005)).
In 1999, the Tribe sued Tacoma in federal court for declaratory relief and damages relating to the construction, operation, and maintenance of the Project. It alleged that the Project "has had, and continues to have, a destructive effect on Plaintiffs' property and other legal interests. . . ." Tacoma tendered defense of the lawsuit to Great American Insurance Company. Thereafter, the Insurers commenced this declaratory judgment action against Tacoma, Great American, and others. In 2002, Great American moved for summary judgment, asking the trial court to determine that it had no duty to indemnify Tacoma under the terms of its policy. Based on Overton v. Consolidated Insurance Company, and other authorities, the trial court granted the motion. It held that there was no "occurrence" under the policy because Tacoma expected property damage before purchasing the policy from Great American.
145 Wn.2d 417, 425, 38 P.3d 322 (2002).
After a decade of litigation defending against the claims of the Tribe in the federal lawsuit, Tacoma settled. Among other damages, Tacoma paid six million dollars in cash for "damages, including aggradation-related damages."
Shortly after the settlement, the Insurers moved for partial summary judgment against Tacoma in this action, asking the court to hold that they had no duty to indemnify under their commercial general liability policies. They argued there was no coverage because Tacoma expected property damage before purchasing the policies. Moreover, they claimed there was no wrongful eviction triggering personal injury coverage under the policies. The court agreed and granted the motions. Tacoma appeals.
UNEXPECTED PROPERTY DAMAGE
Tacoma argues that it is entitled to coverage under the Insurers' policies because the definition of "occurrence" is ambiguous and could refer to either the development of aggradation due to the ongoing operation of the Project (as a "continuous or repeated exposure to conditions") or the initial building of the Project (an "event"). We disagree. Because Tacoma expected property damage from the Project before purchasing the policies, there was no "occurrence" triggering coverage.
A motion for summary judgment may be granted when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. We review de novo the grant of a summary judgment motion.
CR 56(c).
Go2Net, Inc. v. FreeYellow.com, Inc., 158 Wn.2d 247, 252, 143 P.3d 590 (2006).
Courts construe insurance policies as contracts. The court must examine the policy as a whole in determining the meaning of a particular term. A trial court must enforce the policy as written if the language is clear and unambiguous and may not create an ambiguity where none exists. "If terms are defined in a policy, then the term should be interpreted in accordance with that policy definition." If policy terms are not defined, then they are to be given their "plain, ordinary, and popular" meaning.
Australia Unlimited, Inc. v. Hartford Cas. Ins. Co., 147 Wn. App. 758, 765, 198 P.3d 514 (2008).
Polygon Northwest Co. v. American Nat. Fire Ins. Co., 143 Wn. App. 753, 785, 189 P.3d 777 (2008).
Quadrant Corp. v. Am. States Ins. Co., 154 Wn.2d 165, 171, 110 P.3d 733 (2005).
Kitsap County, 136 Wn.2d at 576.
Id.
"An ambiguity in an insurance policy is present if the language used is fairly susceptible to two different reasonable interpretations." Ambiguities are given a meaning and construction most favorable to the insured. "If the portion of the policy being considered is an inclusionary clause in the insurance policy, the ambiguity should be liberally construed to provide coverage whenever possible."
Id.
Quadrant Corp., 154 Wn.2d at 172.
Ross v. State Farm Mut. Auto. Ins. Co., 132 Wn.2d 507, 515-16, 940 P.2d 252 (1997) (emphasis omitted).
An insured has the burden to prove that "its loss is within the scope of the policy's insured losses." The interpretation of an insurance contract is a matter of law. The court reviews questions of law de novo.
Overton, 145 Wn.2d at 431.
State Farm Gen. Ins. Co. v. Emerson, 102 Wn.2d 477, 480, 687 P.2d 1139 (1984).
Mains Farm Homeowners Ass'n v. Worthington, 121 Wn.2d 810, 813, 854 P.2d 1072 (1993).
As briefed and argued in this case, it is undisputed that construction of the Project caused aggradation in the Skokomish riverbed and that aggradation caused property damage to the members of the tribe that sued. Thus, there are no genuine issues of material fact about the causation of the damages.
The main question is whether the Insurers are entitled to judgment as a matter of law. That depends on whether there is coverage under the policies at issue. For coverage under a comprehensive general liability policy to apply, the insured must show some form of harm caused by an "occurrence." Each of the eight policies provides that the insurance company will pay "all sums which the Insured shall be obligated to pay . . . for damages, direct or consequential, and expenses . . . on account of . . . property damage . . . caused by or arising out of an occurrence . . . ." "Property damage" and "occurrence" are defined, respectively, as follows:
Overton, 145 Wn.2d at 424 (citing Queen City Farms, Inc. v. Cent. Nat'l Ins. Co., 126 Wn.2d 50, 70-71, 882 P.2d 703 (1994)).
Clerk's Papers at 1364 (emphasis added).
The term " property damage" means loss of or direct damage to or destruction of tangible property . . . .
. . . .
The term " occurrence" means an accident or a happening or event or continuous or repeated exposure to conditions which unexpectedly and unintentionally results in personal injury, property damage or advertising liability during the period. All such exposure to substantially the same general conditions existing at or emanating from one location shall be deemed one occurrence.
Clerk's Papers at 1366 (emphasis added).
In determining whether damage "unexpectedly and unintentionally results[,]" a subjective standard is applied based upon the state-of-mind of the insured.
Queen City Farms, 126 Wn.2d at 66-68.
The supreme court considered the interpretation of substantially the same language in Overton and provided a framework for analyzing whether coverage exists. Such a policy covers only (1) accidents, happenings, events, or continuous or repeated exposure to conditions which, (2) during the policy period, (3) result in property damage (4) that is neither expected nor intended (5) from the standpoint of the insured. "In other words, property damage that is expected or intended by the insured does not warrant coverage." Overton involved a dispute over comprehensive general liability insurance coverage of clean-up costs for contaminated property previously owned by the insured. Using the analysis above, the court determined that the insured had notice of contamination before purchasing the policy because the DOE notified him of a test result indicating soil contamination on his property. Accordingly, the insured could not claim that the property damage was unforeseeable by him and that there was an "occurrence" requiring the insurer to pay. Clean-up costs were not an "occurrence" because the insured had notice of the soil contamination prior to purchasing the insurance policy.
Id. at 425 (emphasis added).
Id.
Id. at 421.
Id. at 431.
Id.
Id. at 427.
Here, the insured expected property damage prior to purchasing the first of a series of policies. In 1921, as part of the litigation to condemn property for the Project, land owners alleged that there was great danger of their property "being inundated and flooded through the chance of the said dam washing out or the water of the said Skokomish River breaking through and around the proposed dam . . . and flooding the premises . . . and doing great damage thereto . . . ." They also alleged that "the sub-irrigation of their lands . . . will be greatly deteriorated and that their lands will suffer great injury thereby. . . ." A Petition in Intervention similarly warned of expected property damage:
Clerk's Papers at 549 (emphasis added).
Clerk's Papers at 549 (emphasis added).
the impounding of the large body of water proposed to be impounded by the . . . plaintiff and the consequent damages of the premises of these defendants being inundated and flooded through the chance of the said dam washing out or the said impounded waters breaking through and around the proposed dam . . . and escaping from said impounding basin and flooding the premises of these defendants and doing great damage thereto. . . .
Clerk's Papers at 561.
In 1939, Tacoma was again made aware of potential property damage at a public hearing on flood control. A memorandum from the meeting stated that "[t]he average annual damage from floods to . . . farms was asserted to total some $26,000, although the probability of this figure being exaggerated was admitted."
Clerk's Papers at 163.
Again, in 1957, during a Soil Conservation Service Meeting attended by Tacoma City Light, private citizens described the damage to their property caused by the Project:
Most of the damage occurs in the lower valley and consists of over bank flooding , bank erosion and damage resulting from the formation of debris dams. . . . An Indian from the reservation outlined the damage to the Indian land. The damage consists mostly of over bank flooding and deposition of debris on the farm land.
Clerk's Papers at 170-71 (emphasis added).
Finally, in a 1958 Report of Field Examination on the Skokomish River Watershed produced by Tacoma during discovery, the examiner reported that there were problems of damage to farms, homes, and agricultural land. Specific problems included:
Clerk's Papers at 176.
(a) loss of land due to excessive erosion of streambanks; (b) damage to pasture and hay lands due to heavy deposition of sand and gravel; (c) damage to homes and household furnishings due to high water entering these homes; (d) damage to farm machinery and loss of livestock; (e) damage to farm buildings. . . .
Clerk's Papers at 180.
Based upon these documents, it is clear that Tacoma expected property damage prior to its purchase of the first insurance policies in 1975.
Tacoma makes several inter-related arguments that are unpersuasive. Each is addressed below.
Unexpected "Happening"
Tacoma argues that "[t]he definition of `occurrence' has two components: (1) there must be `an accident or a happening or event or a continuous repeated exposure to conditions', and (2) that happening must `unexpectedly and unintentionally' result in property damage." Tacoma misreads the import of the plain language of the policies.
Reply Brief of Appellants at 2 (emphasis added).
The first part of the definition of occurrence requires an "accident," "happening," "event," or "continued or repeated exposure" to certain conditions. But the second part of the definition requires the resulting property damage to be unexpected or unintended from the insured's point of view. Thus, the focus is on whether the property damage is unexpected, not whether the triggering event, as defined by the policy, is unexpected or unintended.
The policy that was at issue in Overton contained substantially the same language as the policy here: "`occurrence' means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured. . . ." The supreme court held such language meant that "the plain language of the policy covers only (i) accidents which, (ii) during the policy period, (iii) result in property damage (iv) that is neither expected nor intended (v) from the standpoint of the insured." A similar definition of "occurrence" was also analyzed in City of Okanogan v. Cities Insurance Association of Washington. There, the court held that "the trigger for insurance coverage `is not whether [the] insured intended or expected the event resulting in the damage but whether he intended or expected the damage resulting from the event.'"
Overton, 145 Wn.2d at 425.
Id.
72 Wn. App. 697, 701, 865 P.2d 576 (1994) (occurrence defined as "an accident, event or error or omission during the policy period, including injurious exposure to conditions, which results in personal injury, property damage, or errors and omissions neither expected nor intended from the standpoint of the Insured").
Id. at 703 (citing 46 C.J.S. Insurance §§ 941, at 285 (1993)).
For purposes of our analysis of the policies here, there is no meaningful distinction between the policy in Overton and the policies here. The property damage that results from one of the designated triggering events must be unexpected or unintended. It is irrelevant which of the triggering events causes the resulting property damage so long as that damage is neither expected nor intended.
Tacoma's reading of the policy language leads to the creation of an ambiguity that is simply not there. The plain language of the policies does not support the argument that because the allegedly unexpected aggradation caused property damage, there is coverage. Rather, the only reasonable reading of these policies is that unexpected or unintended property damage from any of the triggering events is a requirement for coverage. Because Tacoma expected property damage, there was no "occurrence" under the plain words of these policies.
Tacoma argues that the supreme court, in Woo v. Fireman's Fund Insurance Company, held that the definition of "occurrence" requires the event or happening itself to be unexpected. However, the definition of "occurrence" in Woo was quite different from the definition in these policies in that it did not depend on the expectation of "damage:"
161 Wn.2d 43, 164 P.3d 454 (2007).
"Occurrence" is defined as "[a]n accident, including continuous or repeated exposure to substantially the same general harmful conditions." "Accident" is defined as a "fortuitous circumstance, event or happening that takes place and is neither expected nor intended from the standpoint of the insured."
Id. at 62-63.
Under that policy, the plain language required that Woo had to intend not only the event or happening that caused the injury, but also the injuries that resulted. Because the definition of "occurrence" in this case is much narrower, Tacoma's reliance on Woo is unpersuasive.
Id. at 64.
Moreover, Woo analyzed the insurer's duty to defend, not the duty to indemnify. The latter duty is narrower in scope than the former and requires an inquiry into the insured's actual liability and coverage, not just the potential for liability.
Id. at 52-53.
Tacoma also argues that there are two separate "occurrences" (the building of the dam and aggradation). Accordingly, they claim that liability can result from either one. This is not persuasive.
In Transcontinental Insurance Company v. Washington Public Utilities Districts' Utility System, the supreme court held that separate causes could trigger coverage under multiple policies. However, in that case, the issue was whether there were different "occurrences" within different policy years, resulting in coverage under more than one policy.
111 Wn.2d 452, 760 P.2d 337 (1988).
Id. at 467.
Id.
Here, both the building of the dam and aggradation occurred before any of the policies were issued. As we explained earlier in this opinion, it is undisputed that there is a causal connection between the reduced water flow, the aggradation, and the resulting property damage. Tacoma's attempt to artificially parse the language of the policy is not convincing. Because property damage was expected by Tacoma, Transcontinental does not resolve the underlying issue and is not helpful.
In Certain Underwriters at Lloyd's London v. Valiant Insurance Co., this court compared Transcontinental, Gruol Construction Co., Inc. v. Insurance Co. of North America, and American National Fire Insurance Co. v. B L Trucking. In that case, faulty construction resulted in water damage to a building in different locations and at different times. The issue was whether the individual underlying causes of the leakage were separate "occurrences" or one single continuous "occurrence" under the policies at issue.
155 Wn. App. 469, 476, 229 P.3d 930 (2010).
11 Wn. App. 632, 524 P.2d 427 (1974).
82 Wn. App. 646, 920 P.2d 192 (1996).
Certain Underwriters, 155 Wn. App. at 471.
Id. at 474.
Gruol and B L Trucking are consistent with the general rule stated in Transcontinental that the number of occurrences equals the number of causes of liability. In Gruol, the cause of continuous damage to the building was the single occurrence of dry rot. In B L Trucking, the pollution liability was caused by the single "occurrence" of continuous leaching. Similarly here, the property damage was caused by a single occurrence of continuous exposure to water intrusion.
Id. at 476 (citations omitted).
However, in this case, the issue is not whether there is a single event or a continuous exposure to injury, but whether the property damage that resulted was expected or not. Therefore, these cases are not helpful.
Character of Damage
Tacoma argues that aggradation-related property damage is of a different character than the damage anticipated if the dam failed and therefore was "unexpected" under the policy language. We do not see any support for this claim in the plain language of the policy.
In its briefing, Tacoma admits that it seeks coverage for "damage relating to increased overbank flooding and raised groundwater levels (the property damage)." As described above, Tacoma received notice in the 1950s of "over bank flooding" and "high water" damage to property. Although the property damage at issue occurred in a different hydrological way than expected, the result is the same. There is no material distinction under the plain words of the policies between damages from overbank flooding and rising groundwater levels due to aggradation and the damages from overbank flooding that resulted from the operation of the dam in the 1950s.
Expectation Defined by Liability
Tacoma also argues that its expectation of non-aggradation-related property damage cannot preclude coverage under the policy because it did not give rise to Tacoma's ultimate liability to the tribe. We disagree.
Tacoma relies heavily on B L Trucking in making this argument. In that case, the insured became liable for property damage due to arsenic leaching from a landfill operated by the insured. The landfill was used to dispose of both woodwaste and slag. However, it was the slag, not the woodwaste, which created arsenic contamination and resulted in liability for property damage. In an insurance coverage suit, the insurer appealed the use of a jury instruction asking jurors to determine when the insured expected contamination from arsenic, rather than any type of contamination. The court held that because the insured was only legally liable for property damage related to the arsenic contamination and not woodwaste contamination, the jury instruction was correct.
B L Trucking, 82 Wn. App. at 653.
Id. at 651.
Id. at 653.
Id. at 659 (emphasis added).
Id. at 660.
Similarly, in Smith v. Hughes Aircraft Co., the Ninth Circuit held that an insured's expectation of injury must be based upon the injury that actually gave rise to liability. In that case, the district court improperly concluded that the insured "expected" damages when it disposed of chromium, despite the fact that the personal injuries that later arose were related to another chemical, not chromium.
22 F.3d 1432, 1439-40 (9th Cir. 1993) (applying Arizona law).
Id.; see also Outboard Marine Corp. v. Liberty Mut. Ins. Co., 154 Ill.2d 90, 607 N.E.2d 1204 (1992) (holding that coverage is only precluded if "the insured expected and intended to discharge the particular toxic it is alleged to have discharged and for which it now seeks coverage ").
Finally, in Public Utility District No. 1 of Klickitat County v. International Insurance Co., the supreme court considered whether the "known risk" doctrine precluded coverage for amounts paid in settlement of securities violations. In that case, the insured was aware that its decision to close two power plants might result in some legal liability, but not that it would be liable to bondholders for securities violations. The court held that "[t]he knowledge that some loss may occur in the future is the driving force behind the purchase of insurance [and a] finding that this general knowledge precludes coverage would be much too broad." Because the insured did not expect the type of liability it faced when it purchased the insurance, the insurers could not deny coverage.
124 Wn.2d 789, 805-06, 881 P.2d 1020 (1994).
Id. at 806.
Id. at 808.
Id. at 807.
Here, the damage resulting in liability is the same damage that gave rise to the liability. Tacoma explains that "the property damage for which Tacoma is liable relates to increased overbank flooding and raising of groundwater levels." The record shows that Tacoma had notice of and expected property damage due to overbank flooding and high water. Because the property damage that was expected was the same type of property damage that actually resulted in liability, B L Trucking, Smith, and Public Utility District No. 1 are unpersuasive.
"Mere Notice"
Tacoma's final argument is that its expectation of damages in this case is based on the subjective standard of "substantial expectation" rather than the "mere notice" standard. This argument does not require a different result.
In Overton, the court distinguished use of the "substantial expectation" standard and the "mere notice" standard. The difference turns upon the element that is expected: liability or damage. In order for there to be no "occurrence" under the policy, the insured must have received notice indicating a "substantial probability" that a loss would occur. However, "for the purposes of determining whether the property damage is expected by the insured, the insured merely must be put on notice ." The court held that there was no coverage because the insured received notice of contamination on his property before he purchased the insurance. It was immaterial that he did not expect it to result in liability because the property damage was no longer unexpected, "taking [the] claim outside the `occurrence' definition." A positive test result from the DOE indicating the presence of PCBs on the property was sufficient to put the insured on notice of the damage.
Overton, 145 Wn.2d at 425-26.
Id. at 426 (emphasis added) (citing City of Okanogan, 72 Wn. App. at 703).
Id. at 427.
Id. at 426-27.
Here, Tacoma received notice that operation of the Project was flooding nearby property and causing damage, most recently in the 1958 Report of Field Examination as well as during the condemnation litigation and public meetings. As in Overton, its subjective expectation of a substantial probability of legal liability was immaterial because the knowledge of existing property damage took the claim outside of an "occurrence" under the policy.
Tacoma tries to distinguish Overton on the basis that there was a clear finding of property damage from PCB contamination in that case, whereas here Tacoma did not receive notice of aggradation-related property damage. But Tacoma's argument relies on the fallacy that property damage from overbank flooding and rising groundwater levels due to aggradation is distinguishable from property damage from overbank flooding and rising groundwater levels due to the general operation of the Project. As discussed above, this is not persuasive.
Finally, Tacoma argues that there is no evidence that it expected property damage due specifically to rising groundwater levels. However, it is unnecessary that Tacoma had notice of every hydrological way in which property damage could occur. The Tribe's property was damaged by water as a result of the operation of the Project and Tacoma had notice of the water damage prior to purchasing the policies at issue. Just as the distinction between aggradation and non-aggradation damage is immaterial, so too is the distinction between overbank flooding and rising groundwater damage.
In sum, Tacoma fails in its burden to show that its loss was an occurrence triggering coverage.
Personal Injury Coverage for "Wrongful Eviction"
Tacoma also argues that it is entitled to "personal injury" coverage under the Insurers' policies because the Tribe alleged that Tacoma wrongfully dispossessed it of property and these allegations fall within the meaning of "wrongful eviction." Because Tacoma does not have a landlord-tenant relationship with the Tribe, it cannot have wrongfully evicted its members.
"If terms are defined in a policy, then the term should be interpreted in accordance with that policy definition." If policy terms are not defined, then they are to be given their "plain, ordinary, and popular" meaning.
Kitsap County, 136 Wn.2d at 576.
Id.
Each of the contracts at issue provides that the insurance company will cover "all sums which the Insured shall be obligated to pay . . . for damages, direct or consequential, and expenses . . . on account of . . . personal injur[y] . . . caused by or arising out of an occurrence. . . ." Under the contracts, "personal injury" includes "false arrest, false imprisonment, wrongful eviction , wrongful detention, or malicious prosecution. . . ." "Wrongful eviction" is not defined.
Clerk's Papers at 1348 (covers "detention" rather than "wrongful detention") (emphasis added).
Tacoma argues that the court should adopt the plain, ordinary meaning of "wrongful eviction." Black's Law Dictionary defines a "wrongful-eviction action" as "[a] lawsuit by a former tenant or possessor of real property against one who has put the plaintiff out of possession, alleging that the eviction was illegal." A possessor is defined as "[o]ne who has possession of real or personal property. . . ." Possession is defined as "[t]he fact of having or holding property in one's power; the exercise of dominion over property." Based upon these definitions, wrongful eviction could occur against a tenant or a person who holds property.
Black's Law Dictionary 1752 (9th ed. 2009).
Id. at 1283.
Id. at 1281.
But in Kitsap County v. Allstate Insurance Co., the supreme court held that "wrongful eviction" in a personal injury clause of an insurance contract does not include actions where there is no landlord-tenant relationship. In that case, the County sought insurance coverage for amounts paid in the settlement of lawsuits with landowners and residents alleging trespass, nuisance, and interference with use and enjoyment of property as a result of odors and pollution emanating from a landfill and waste disposal facility. Most of the insurance policies included coverage for personal injury, arising out of "wrongful entry or eviction or other invasion of the right of private occupancy." Of the remaining policies, half provided coverage for offenses including "wrongful entry" or "wrongful eviction," while the other half only provided coverage for the offense of "wrongful eviction." The court held that damages which arose from actions that constituted a trespass or nuisance were equivalent to a "wrongful entry" or "invasion" and should be covered by the policies providing coverage for "wrongful entry." However, damages arising from actions of nuisance, trespass, and interference with use and enjoyment of property were not equivalent to "wrongful eviction" and, therefore, were not covered by the policies that provided coverage for "wrongful eviction" only.
Id. at 571-72.
Id. at 573.
Id. at 574 (emphasis added).
Id. at 589, 592.
Id. at 595.
The court was persuaded by three factors. First, "eviction" requires a physical ouster and, while some residents left the affected property, there was no assertion that they were "ousted" by any intentional conduct of the County. Second, there was no landlord-tenant relationship between the County and the affected residents and constructive eviction requires such a relationship. Third, constructive eviction requires a tenant to give notice to the landlord of the condition complained of and an opportunity to remedy the situation. Because the County was not given notice, there could be no constructive eviction.
Id. at 593.
Id. at 593-94.
Id. at 594.
Id.
Here, the insurance policies at issue only provide coverage for personal injury damages arising from "wrongful eviction" and do not include "wrongful entry" or "invasion." Upon review of the Tribe's claims as summarized by Tacoma, it appears that each could be classified as either trespass or nuisance under the definitions applicable in Kitsap County: "[a] nuisance is an unreasonable interference with another's use and enjoyment of property, whereas a trespass is an invasion of the interest in exclusive possession of property." Therefore, the holding in Kitsap County is controlling and Tacoma is not entitled to coverage for personal injury damages because they did not "oust" the Tribe from the affected land nor do they have a landlord-tenant relationship with the Tribe.
Id. at 592 (citing Bradley v. American Smelting Ref. Co., 104 Wn.2d 677, 685, 709 P.2d 782 (1985)).
Tacoma argues that the Tribe did allege physical "ouster" from the property, so the absence of a landlord-tenant relationship should not be dispositive. This argument is based on the view that the second and third factors in the Kitsap County analysis are only necessary if there was no physical ouster, i.e., the court must shift to a "constructive eviction" analysis if there was no "actual eviction." Upon a careful reading of that case, this argument is not persuasive. It appears that the court discusses "constructive eviction" rather than "wrongful eviction" because the County framed the underlying issues in terms of a "constructive eviction of the tenants" and not a "wrongful eviction." The court simply adopted the language of the County in its analysis. Therefore, the distinction is immaterial and any of the three factors may be dispositive. Because Tacoma did not have a landlord-tenant relationship with the Tribe, it could not have wrongfully evicted the Tribe's members, regardless of whether or not the Tribe was physically ousted.
Tacoma also argues an "eviction" does not require a landlord-tenant relationship, and, therefore, the absence of that relationship should not preclude coverage. It relies mainly on Foley v. Smith, which discusses "eviction" in the context of private parties in a land transaction. The dispute in Foley involved a breach of the covenants of warranty and quiet enjoyment in a deed. The court explained that the covenant of warranty protects land-purchasers from later actual or constructive eviction because another person has a superior title. However, because the court does not define or address "wrongful eviction," the Foley court's description of "eviction" is not relevant to this case.
14 Wn. App. 285, 290-92, 539 P.2d 874 (1975).
Id.
Id. at 290-91.
Here, the insurance policy does not provide coverage for "eviction," it provides coverage for "wrongful eviction" and Tacoma cannot create an ambiguity in the contract language where none exists. Given the controlling authority of Kitsap County, Tacoma cannot recover for personal injury damages because a "wrongful eviction" action requires a landlord-tenant relationship and none existed here.
ATTORNEY FEES
Tacoma seeks an award of attorney fees under Olympic Steamship Co. v. Centennial Insurance Co. However, Olympic Steamship extends to an insured a right to recover attorney fees incurred "because an insurer refuses to defend or pay the justified action or claim of the insured. . . ." Because Tacoma is not entitled to coverage by the insurance policies at issue, recovery of attorney fees is not required. We deny the request for fees.
117 Wn.2d 37, 811 P.2d 673 (1991).
Id. at 52.
We affirm the summary judgment orders.