Graham v. Public Employees Mut. Ins. Co.

• Decision Date: 06 January 1983
• Docket Number: 47955-1,No. 47706-0,47706-0
• Citation: 656 P.2d 1077,98 Wn.2d 533
• Parties: Ronald GRAHAM and Tamara Graham, husband and wife; and David Campbell and Lois Campbell, husband and wife, Appellants, v. PUBLIC EMPLOYEES MUTUAL INSURANCE COMPANY, Respondent. Joseph FOTHERINGILL and Alta Fotheringill, husband and wife, Appellants, v. PENNSYLVANIA GENERAL INSURANCE COMPANY, Respondent.
• Court: Washington Supreme Court

Page 533

98 Wn.2d 533

656 P.2d 1077

Ronald GRAHAM and Tamara Graham, husband and wife; and David Campbell and Lois Campbell, husband and wife, Appellants, v. PUBLIC EMPLOYEES MUTUAL INSURANCE COMPANY, Respondent.

Joseph FOTHERINGILL and Alta Fotheringill, husband and wife, Appellants, v. PENNSYLVANIA GENERAL INSURANCE COMPANY, Respondent.

No. 47706-0, 47955-1.

Supreme Court of Washington,

En Banc.

Jan. 6, 1983.

Walstead, Mertsching, Husemoen, Donaldson & Barlow, John A. Barlow, Craig W. Weston, Longview, for appellants.

Walker, Dowell & Hunter, Willard Walker, Longview, Bullivant, Wright, Leedy, Johnson, Pendergrass & Hoffman, Douglas G. Houser, I. Franklin Hunsaker, Deborah S. MacMillan, Portland, Or., Clark, Bovingdon & Cole, Mark S. Cole, Seattle, for respondent.

DORE, Justice.

This appeal arises from a dispute which erupted between two insurance companies and their insureds following the May 18, 1980 explosion of Mt. St. Helens. The early pyroclastic flows from the eruption, along with hot ash and debris, began melting the snow and ice flanking the mountain and the broken glacial ice blocks within the Toutle River valley. This water, combined with torrential rains from the eruption cloud, existing ground water, water displaced from Spirit Lake, and ash and debris, created mudflows which began moving down the valley shortly after the eruption began. This process continued throughout the day of May 18.

At some point, a large mudflow developed in the upper reaches of the south fork of the valley from the Toutle and Talus glaciers. The mudflow gouged and filled the land into new forms as it moved, damaging or destroying many homes within its path. Approximately 10 hours after the eruption began, the appellants' homes, 20-25 miles away from Mt. St. Helens, were destroyed by a mudflow or a combination of mudflows preceded by water damage from flooding.

At the time of the eruption, homeowners insurance policies issued by Public Employees Mutual Insurance Company (hereafter PEMCO) to appellants Graham and Campbell, and a policy issued by Pennsylvania General Insurance Company (hereafter PGI) to appellants Fotheringill were in effect. All three policies provided in pertinent

part as follows:

SECTION 1--EXCLUSIONS

We do not cover loss resulting directly or indirectly from:

* * *

2. Earth Movement. Direct loss by fire, explosion, theft, or breakage of glass or safety glazing materials resulting from earth movement is covered.

3. Water damage, meaning:

a. flood, ...

Of the seven exclusions listed in the PEMCO policy, "earth movement" is the only one not specifically defined in the policy.

Prior to March 1980, PEMCO utilized insurance forms containing this exclusionary language:

This policy does not insure against loss:

* * *

2. caused by, resulting from, contributed to or aggravated by any earth movement, including but not limited to earthquake, volcanic eruption, landslide, mudflow, earth sinking, rising or shifting; unless loss by fire, explosion or breakage of glass constituting a part of the building(s) covered hereunder, including glass in storm doors and storm windows, ensues, and this Company shall then be liable only for such ensuing loss, but this exclusion does not apply to loss by theft;

This language was deleted by PEMCO in an overall effort to simplify the policy language.

The homeowners filed claims against the insurance companies under their homeowners policies, but the insurance companies rejected their claims on the basis that the damage was excludable as "earth movement" in the form of mudflows or a combination of earth movement and water damage. The Grahams and Campbells then commenced this action against PEMCO in Cowlitz County Superior Court. On April 10, 1981, the trial court granted PEMCO's motion for summary judgment, dismissing the homeowners' complaint. Meanwhile, the Fotheringills instituted a suit against PGI in the same court. On April 29, 1981, the trial court, after hearing argument virtually identical to that of For the purpose of ruling on the summary judgment motion, the trial court assumed the movement of Mt. St. Helens to be an "explosion" within the terms of the insurance policies. The trial court noted this issue was a factual issue to be determined by a jury. We agree, as the true meaning of "explosion" in each case must be settled by the common experience of jurors. Oroville Cordell Fruit Growers, Inc. v. Minneapolis Fire & Marine Ins. Co., 68 Wash.2d 117, 122, 411 P.2d 873 (1966). Because direct loss from an explosion resulting from earth movement is not excluded from coverage, the jury must also determine the factual issue of whether the earth movements were caused by the earthquakes and harmonic tremors which preceded the eruption.

the Graham case, granted PGI's motion for summary judgment, dismissing the Fotheringills' complaint.

If the jury determines the volcanic eruption was an explosion resulting from earth movement, it will then be necessary to reach the issue of whether the loss was a direct result of the eruption. The trial court held that the causation analysis of Bruener v. Twin City Fire Ins. Co., 37 Wash.2d 181, 222 P.2d 833 (1950) precluded the plaintiffs' claims.

In Bruener, the insured's vehicle skidded on icy pavement and collided with an embankment. The insurance policy contained a collision exclusion to the comprehensive coverage. This court held that the loss was a "collision" for insurance purposes, reasoning as follows at 183-84, 222 P.2d 833:

In tort cases, the rules of proximate cause are applied for the single purpose of fixing culpability, with which insurance cases are not concerned. For that purpose, the tort rules of proximate cause reach back of both the injury and the physical cause to fix the blame on those who created the situation in which the physical laws of nature operated. The happening of an accident does not, in itself, establish negligence and tort liability. The question is always, why did the injury occur. Insurance cases are not concerned with why the injury occurred or the The Bruener court expressly overruled Ploe v. International Indem. Co., 128 Wash. 480, 223 P. 327 (1924), a case involving a driver who lost control of an automobile while rounding a curve on a mountain road. The car left the highway and traveled 25 feet before striking a stump along the road. Holding that the insurer was not liable, the court characterized the proximate cause of the accident to be the skidding of the car and not the collision with the stump. Ploe, at 483, 223 P. 327. The court reasoned that the destruction of the car was imminent from the time it left the highway, whether it struck the stump or not. In overruling the Ploe decision, the Bruener court, 37 Wash.2d at 185, 222 P.2d 833 replaced this proximate cause analysis with one of "direct, violent and efficient cause".

question of culpability, but only with the nature of the injury and how it happened.

In Dickson v. United States Fidelity & Guar. Co., 77 Wash.2d 785, 466 P.2d 515 (1970), the plaintiff's boom crane was insured under a policy which excluded coverage for latent defects. The boom crane was damaged when earth, collapsing onto an "H" beam that was being removed, caused a sudden stoppage of the hoist. This stoppage put an increase in load on the boom structure, causing a defective weld to break and the boom to collapse. This court affirmed the trial court's ruling that the earth collapse was the external and responsible cause of the failure of the weld and the collapse of the boom, stating at 793, 466 P.2d 515:

The trial court regarded the collapsing earth as the external and responsible cause of the failure of the weld and the collapse of the boom. He did not thereby rule in contradiction to our rule on insurance causation, as set forth in Bruener v. Twin City Fire Ins. Co., [37 Wash.2d 181, 222 P.2d 833 (1950) ] wherein we stated that, for the purposes of insurance litigation, the responsible cause of a loss is that which is the "direct, violent and efficient cause of the damage."

In reviewing the foregoing cases, we conclude the immediate physical cause analysis is no longer appropriate and should be discarded. The Bruener rule is an anomaly It is the efficient or predominant cause which sets into motion the chain of events producing the loss which is regarded as the proximate cause, not necessarily the last act in a chain of events. Dickson, supra, 77 Wash.2d at 794, 466 P.2d 515; 5 J. Appleman, supra, at 309-11; Frontis v. Milwaukee Ins. Co., 156 Conn. 492, 242 A.2d 749, 753 (1968); 43 Am.Jur.2d, supra, at § 1182. The mechanical simplicity of the Bruener rule does not allow inquiry into the intent and expectations of the parties to the insurance contract. Sears, Roebuck & Co. v. Hartford Accident & Indem. Co., 50 Wash.2d 443, 313 P.2d 347 (1957). We now specifically overrule the Bruener case. ²

                inconsistent with the rule in the majority of other jurisdictions. 1  We have defined [656 P.2d 1081] "proximate cause" as that cause "which, in a natural and continuous sequence, unbroken by any new, independent cause, produces the event, and without which that event would not have occurred".   Stoneman v. Wick Constr.  Co., 55 Wash.2d 639, 643, 349 P.2d 215 (1960).   Where a peril specifically insured against sets other causes in motion which, in an unbroken sequence and connection between the act and final loss, produce the result for which recovery is sought, the insured peril is regarded as the "proximate cause" of the entire loss.   Franklin Packaging Co. v. California Union Ins. Co., 171 N.J.Super. 188, 408 A.2d 448, 449 (1979), quoting 5 J. Appleman, Insurance § 3083, at 309-11 (1970).   See also Gowans v. Northwestern Pac.  Indem. Co., 260 Or. 618, 489 P.2d 947, 46 A.L.R.3d 398, reh'g denied, 260 Or. 618, 491 P.2d 1178 (1971);   Cresthill Indus.,

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