Frontier Lanes v. Canadian Indem. Co., MCU-385

CourtCourt of Appeals of Washington
Writing for the CourtSWANSON
Citation26 Wn.App. 342,613 P.2d 166
PartiesFRONTIER LANES and Vitrol, Inc., Appellants, v. CANADIAN INDEMNITY COMPANY, Pacific Insurance Company, General Accident Company, New Hampshire Insurance Company, Atlas Assurance Company, American Star Insurance Company, Western Fire Insurance Company, and Underwriters at Lloyds designated as R. Sells at Lloyds London, subscribing to certificate numberespondents.
Docket NumberR,MCU-385,No. 7321-4-I,7321-4-I
Decision Date02 June 1980

David F. Hiscock, Judith Baker Hine, Keller, Rohrback, Waldo & Hiscock, Seattle, for appellants.

Robert W. Burns, Foulds, Felker, Burns & Johnson, Seattle, for respondents.


Frontier Lanes and Vitrol, Inc., plaintiffs in an action for declaratory judgment and breach of contract, appeal from the trial court's granting of defendants' motion for summary judgment. Defendants, a group of insurance companies, seek cross review of the trial court's refusal to grant summary judgment on four additional bases.

Frontier Lanes and Vitrol, Inc. ("Frontier") operated a north Seattle bowling alley. Canadian Indemnity and the other insurance companies ("Canadian") issued a series of policies to Frontier insuring against specific risks to the building housing the bowling alley. The risks insured against included "direct loss by Vandalism and Malicious Mischief" but did not include water damage. On December 10, 1977, after prolonged heavy rains, half the roof over the bowling alley collapsed. Frontier contends that unknown vandals had thrown cans on the roof, and that the cans had washed into and plugged a downspout, causing water to back up and accumulate on the roof. The weight of the water, Frontier claims, caused the roof's collapse. Canadian denied liability for the damage under Frontier's insurance policies, and Frontier then brought the action resulting in this appeal.

Canadian moved for summary judgment on five grounds. 1 The trial court granted the motion on one of the grounds: that the alleged acts of vandalism (the throwing of cans on the roof) did not cause a "direct loss" within the terms of the policies, because other facts (including heavy rains and the lay of the building) intervened between the time of the alleged vandalism and the roof's collapse.

The court based its rule on Bruener v. Twin City Fire Ins. Co., 37 Wash.2d 181, 222 P.2d 833 (1950). Bruener held that in determining whether an insurance policy covers a particular loss only the "immediate physical cause of injury" should be considered. Bruener v. Twin City Fire Ins. Co., supra at 184, 222 P.2d 833. Bruener reversed a line of cases that applied the tort rules of proximate cause in determining the existence of insurance coverage. At issue in Bruener was an automobile insurance policy that covered loss of or damage to the automobile except by collision or upset. The insured under the policy had an accident in which his car skidded on icy pavement and hit an embankment. He brought an action to recover from the insurance company the amount of damage to the car, arguing that the cause of the accident was not the collision, for which coverage was excluded, but the skidding that preceded it. Under the then existing Washington rule, enunciated in Ploe v. International Indemnity Co., 128 Wash. 480, 223 P. 327, 35 A.L.R. 999 (1924), the insured would have recovered. In rejecting the Ploe proximate cause analysis, the Bruener court observed: "Insurance cases are not concerned with why the injury occurred or the question of culpability, but only with the nature of the injury and how it happened." Bruener v. Twin City Fire Ins. Co., supra at 184, 222 P.2d at 835.

Canadian argues on appeal that Bruener requires denial of coverage unless the "immediate physical cause of injury" was the vandalistic act itself. Therefore, Canadian contends that Frontier may not recover here because, even if the alleged acts of vandalism occurred, the "immediate physical cause of injury" was not the throwing of the cans on the roof but the force exerted on the roof by the pond of water. Frontier argues that such a literal application of Bruener in cases like this one vitiates insurance coverage for malicious mischief and vandalism. Frontier argues for adoption here of an "efficient proximate cause" rule that, where there is a concurrence of different causes, would attribute a loss to the cause that sets the others in motion.

We agree with Frontier that to apply Canadian's interpretation of Bruener to malicious mischief and vandalism cases would weaken if not effectively eliminate that coverage. Canadian's...

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