(dissenting). -
[¶ 43.] I disagree with the majority decision on issue one. The majority found the insurance contract ambiguous because it failed to contain a term that defines and determines vacant property. The endorsement clearly defines vacant property as “not lived in; void of furnishing; or furnished, but not used as a full-time primary residence.” It further states that the insurance will not cover a loss if the property is vacant beyond thirty days. This clearly states that the insurance company determines that property is vacant if one of the three events occurs for more than thirty days.
[¶ 44.] The Rumpzas are not contending that the vacancy endorsement can be interpreted different ways, but believe the endorsement is ambiguous because the insured does not know whether or not his/her property is deemed vacant thus requiring an increased premium for full coverage. No party is disputing that the agent determines whether or not the property is deemed vacant when he/she underwrites the policy and that his/her determination is made according to the definition in the endorsement. Stockholm’s president stated that the insured does not know whether or not his property is deemed vacant and whether or not he is paying higher premiums to receive full coverage unless the agent informs him. This creates a duty on the agent, and breach of that duty gives the insured a right to recover under a negligence action which the Rump-zas have pursued and which is a separate and viable claim despite this appeal. The Rump-zas’ lack of knowledge as to whether their property was deemed vacant or not and whether they were paying an increased premium does not make the contract ambiguous. *527The insurance contract and the endorsement are subject to only-one interpretation, and therefore are unambiguous.
[¶45.] The majority found that summary judgment was not appropriate because a question of material fact exists as to the breach of contract because the insurance company’s agent, Larson, did not consider the property vacant when he issued the policy and believed he procured full coverage for the Rumpzas. The agent’s belief as to the status of the property at the time he issued the policy is not controlling at the time of the loss. The facts are not in dispute that at the time the policy was issued, the former owners were residing at the premises, and the Rumpzas were planning to make some repairs and rent the premises out. After the fire, investigators determined that the house had not been lived in for more than thirty days. According to the clear language of the endorsement, the property was vacant and it became that way after the contract was issued. In determining whether the contract was breached, the court should look at whether the premises were correctly deemed vacant when the alleged injury occurred and not when the policy was issued. Therefore, the agent’s belief at the time he issued the policy is not a material fact.
[¶ 46.] The facts are not in dispute that the Rumpzas did not pay an increased premium and could not have received permission because the agent never believed the premises were vacant. The amendatory endorsement clearly explains that if the premises are vacant beyond thirty days, Stockholm will not pay for the loss, but if permission was granted for the vacancy, the insured will receive sixty percent of the property’s value. If the insured pays an increased premium, they will receive the full value of their loss. According to this endorsement] Stockholm did not have to cover the loss. However, Stockholm gave the Rumpzas the benefit of the doubt and found that they had been granted implied permission due to the agent’s knowledge of possible vacancy when he issued the policy.5 It is undisputed that the Rumpzas did not pay an increased premium, and therefore, they were only entitled to sixty percent of the value of the premises which they received. Finding the policy unambiguous and no material facts in dispute, I can find no breach of contract by the insurance company. Therefore, I would affirm the trial court’s granting of Stockholm’s summary judgment.
[¶ 47.] I am hereby authorized to state that AMUNDSON, J., joins this dissent.
. The agent knew that the Rumpzas were going to make some repairs to the home and rent it out until a purchaser was found. When questioned, the agent believed that depending on the type of repairs, a home could be unoccupied for up to sixty days. The agent was never told what type of remodeling was going to be done or that the home would be unoccupied for more than thirty days. Therefore, I do not believe that this could be considered knowledge of a vacancy.