Washington State Hop Producers, Inc. v. Harbor Ins. Co.

• Citation: 34 Wn.App. 257,660 P.2d 768
• Decision Date: 15 March 1983
• Docket Number: No. 4888-III-8,4888-III-8
• Parties: WASHINGTON STATE HOP PRODUCERS, INC., A Washington Farm Cooperative Association, Appellant, v. HARBOR INSURANCE COMPANY, A Corporation and Puritan Insurance Co., A Corporation, Respondents.
• Court: Court of Appeals of Washington

Page 257

34 Wn.App. 257

660 P.2d 768

WASHINGTON STATE HOP PRODUCERS, INC., A Washington Farm

Cooperative Association, Appellant, v. HARBOR INSURANCE COMPANY, A Corporation and Puritan

Insurance Co., A Corporation, Respondents.

No. 4888-III-8.

Court of Appeals of Washington,

Division 3, Panel Four.

March 15, 1983.

Reed C. Pell, Roy & Pell, Yakima, for appellant.

Robert D. Morrow, Rodney J. Vessels, Philip A. Talmadge, Karr, Tuttle, Koch, Campbell, Mawer & Morrow, Seattle, for respondents.

ROE, Chief Judge.

Plaintiff Washington State Hop Producers appeals a summary judgment entered in favor of defendants Harbor Insurance Co. and Puritan Insurance Co.

On October 26, 1979, plaintiff discovered 253 bales (50,853 pounds) of hops in its warehouse had been damaged by "browning". An affidavit submitted by Dr. C.E. Zimmermann, a hop plant physiologist for the U.S. Department of Agriculture, stated the damage was caused by heat which is "indicative of a chemical oxidation of the humulon, lupulon, and oil in the hop cones", similar to being "charred".

Defendants insured plaintiff's stock "against all DIRECT LOSS BY FIRE..." (Italics ours.) Plaintiff submitted a claim of loss to defendants which was refused. As a result, plaintiff brought suit alleging the hops were "destroyed by fire" and seeking coverage within the fire insurance policies. We agree with the trial court's decision denying coverage.

The rules regarding summary judgment are well known and do not require repeating. See Ohler v. Tacoma Gen. Hosp., 92 Wash.2d 507, 511, 598 P.2d 1358 (1979); LaPlante v. State, 85 Wash.2d 154, 158, 531 P.2d 299 (1975).

The word "fire" was not defined in the insurance policies. Undefined words in an insurance policy will be given their popular and ordinary meaning. Witherspoon v St. Paul Fire & Marine Ins. Co., 86 Wash.2d 641, 650, 548 P.2d 302 (1976). According to Webster's Third New Int'l Dictionary 854 (1976), fire is defined as "the phenomenon of combustion as manifested in light, flame, and heat ..." "Combustion" is defined at page 453 as "a process or instance of burning ... any chemical process accompanied by the evolution of light and heat ..."

Cases have held that the mere showing of the emission of smoke, steam or heat is not sufficient to establish the existence of a fire; there must be some visible indication of fire such as flame, glow or light. H. Schumacher Oil Works, Inc. v. Hartford Fire Ins. Co., 239 F.2d 836, 839 (5th Cir.1956); Western Woolen Mill Co. v. Northern Assur. Co., 139 F. 637, 639 (8th Cir.), cert. denied, 199 U.S. 608, 26 S.Ct. 750, 50 L.Ed. 331 (1905); The Buckeye State, 39 F.Supp. 344, 347 (W.D.N.Y.1941); Hartford Fire Ins. Co. v. Electrical Dist. 4, 9 Ariz.App. 374, 452 P.2d 539, 542 (1969); Security Ins. Co. v. Choctaw Cotton Oil Co., 149 Okl. 140, 299 P. 882, 884 (1931). The law does not require that a glow actually be observed, but merely that if there had been an observer in the middle of the pile, who secured his vantage without introducing any extraneous oxygen, he could have observed an actual glow. H. Schumacher Oil Works, Inc., at 840.

Here, there was no evidence of any flame or glow in the damaged hops. Plaintiff urges there could have been if oxygen had been supplied. What " 'could have been' " is not sufficient to satisfy what was. Hartford Fire Ins. Co. v. Electrical Dist. 4., supra 452 P.2d at 542. This was unlike the 1981 incident referred to in an affidavit submitted by Paul Polley, manager of Washington State Hop Producers. In 1981, bales of hops burst into flame as they were separated and removed from the warehouse. Although hops from the 1981 incident were "actually burned by open flames ... [n]o such hops were found at the time of the 1979 occurrence." According to Dr. Zimmermann, regarding the 1979 hop...