Diep v. California Fair Plan Ass'n

Opinion

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.”

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

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

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 . ... [ID 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.” (New Hampshire Ins. Co. v. Carter, supra, 359 So.2d at

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 .... [f] ... [1] [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

“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 plaintiffs 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.