Grange Mutual Casualty Co. v. West Bend Mutual Insurance Co.

MAY, Judge,

dissenting.

The majority determines damage to the storm drain pipe occurred during the West Bend policy period, and that damage “trigger[ed] coverage under its policy with McCurdy.” (Op. at 596.) It then notes the West Bend policy provision that the initial property damage includes “any continuation, change, or resumption of that ‘property damage’ after the end of the policy period.” {Id. at 597) (quoting Appellant’s App. at 318). Finally, it holds that because the West Bend policy was triggered when the drain pipe was damaged, “the policy covers all damages that flowed from the original damage, including the extensive flood damage.” (Id.)

I agree with the majority on all three counts. But the majority then reaches a conclusion I find inconsistent with that analysis, and I must therefore respectfully dissent.

After explicitly holding the West Bend policy covers all damages that flowed from the original damage, including the extensive flood damage, the majority then says the Grange policy also “cover[s] the flood damage at issue” (id. at 597), and instructs the trial court on remand to “apportion damages accordingly.” (Id.)

There is nothing to “apportion.” The majority is correct that the West Bend policy covers “all damages,” and I would accordingly decline to hold there could be damages in addition to “all damages” or that any such additional damages could be assigned on remand to Grange.

My conclusion the Grange policy is not implicated is consistent with the Parr decision on which the majority relies. That court noted when damages arise, as they did here, from “discrete and identifiable events that occur within the policy period, the actual-injury trigger theory allows those policies on the risk at the point of initial damage to pay for all the damages that follow.” 669 N.W.2d at 406-07 (emphasis added) (citing Domtar, Inc. v. Niagara Fire Ins. Co., 563 N.W.2d 724, 733 (Minn.1997)). The policy at issue in Parr, like the West Bend policy before us, provided for payment of damages that manifested themselves after the policy period. It defined “property damage” to include loss of use of property. “All such loss of use shall be deemed to occur at the time of the physical injury that caused it.” Id. at 406.

In Parr, the policy covered Gonzalez from April 29, 1999, to July 31, 1999. While the policy was effect, Gonzalez damaged the vent cap on Parr’s roof. In May, 1999, another contractor replaced the vent cap but installed a wrong-sized vent cap that resulted in a blockage of the vent pipe. After the policy period, Parr discovered large amounts of mold behind the walls, under the floors, and in the attic of the home. The damage was the result of excess condensation created by the obstructed vent pipe. The court found “the policy was triggered because [Parr] sustained property damage during the policy period as a result of [Gonzalez’s] actions,” *599and the policy provided coverage for the subsequent mold damage. Id.

In Domtar, on which the Parr court relied, the Minnesota Supreme Court noted “[i]t is inaccurate to conclude that a CGL insurer is never liable for damages occurring outside of the policy period.” 563 N.W.2d at 733. Therefore, when an injury (there, environmental contamination) “arises from discrete and identifiable events, then the actual-injury trigger theory allows those policies on the risk at the point of initial contamination to pay for all property damage that follows.” Id. (emphasis added). I believe “all” means “all,” and I would accordingly reverse and direct summary judgment for Grange.