dissenting.
The resolution of this controversy is controlled by the decision in St. Paul Fire and Marine Insurance Co. v. Central Park Mobile Homes, 22 Ariz.App. 557, 529 P.2d 711 (1974). Any reference to the rubric of Darner is unnecessary and irrelevant to the proper disposition of this case.
At issue in St. Paul was the definition of the term “windstorm” as used in an insurance policy protecting the insured “against direct loss by windstorm.” The insurance contract in St. Paul was a builder’s risk policy of insurance which covered a building during construction. As the court of appeals recognized, a building under construction is not as structurally stable as a completed building, and it is, therefore, more vulnerable to damage from the force of the wind. >
The term “windstorm” was not defined in the insurance policy involved in St. Paul, a condition common to many insurance policies. Implicit in the decision in St. Paul, and in the cases it relied on, is the recognition that wind is a common occurrence in nature, but the peril which is insured against is wind of such force that it is capable of damaging a building. It is more than the usual wind which occurs on an ordinary day. It is a force which becomes a windstorm.
The court of appeals defined “windstorm” for insurance purposes, as “a wind of sufficient force to damage insured property, if in a reasonable condition, either by its own unaided action, or by projecting some object against it.” St. Paul, 22 Ariz.App. at 560, 529 P.2d at 714.
The limitation “if in a reasonable condition” was taken from Pearson v. Aroos*417toock County Patrons Mut. Fire Ins. Co., 149 Me. 313, 320, 101 A.2d 183, 186. The Maine Supreme Judicial Court in Pearson was attempting to formulate a rule which distinguished between “any wind” and a “windstorm,” the peril insured against. Unlike fire, wind is a common condition in most areas, and buildings are frequently exposed to various degrees of wind. Maine’s high court sought to distinguish between an ordinary wind which wouldn’t damage a building “in reasonable condition” but could readily collapse a building in unsound condition, and a windstorm which damages a building in reasonable condition.
St. Paul adopted the rationale of the line of cases represented by Pearson. The only limitation which St. Paul recognized was that which arises when the insurance policy is issued as a builder’s risk policy insuring a building during the course of construction. The condition of the building at its stage of construction is the important factor. At various stages of construction the building is not as structurally stable as the completed building. Regard must be given to the condition of the building at its stage of construction.
Although the court in this case rejects the rule in St. Paul that the reasonable condition of the building is not a factor, the new rule announced is: “A windstorm is a wind of sufficient force to proximately cause damage to the ordinary condition of the thing insured.” Maj. op. at 416, 737 P.2d at 392. Apparently, however, “ordinary condition” means any condition, because the court states, “... Koory may recover under his policy ... even though his warehouse may have been in ‘unreasonable’ condition.” Maj. op. at 416, 737 P.2d at 392. If “ordinary” can be “unreasonable,” there is no need to extend my comments in opposition to the court’s new rule.
When the trial court attempts to instruct the jury “consistent with this opinion,” I wish the trial judge well, but I dissent.