Phillips v. State Farm Fire & Cas. Co.

• Decision Date: 26 February 2020
• Docket Number: A163831
• Parties: Sally PHILLIPS, Plaintiff-Appellant, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant-Respondent.
• Court: Oregon Court of Appeals

302 Or.App. 500

461 P.3d 1008

Sally PHILLIPS, Plaintiff-Appellant,

v.STATE FARM FIRE AND CASUALTY COMPANY, Defendant-Respondent.

A163831

Court of Appeals of Oregon.

Argued and submitted December 14, 2017

February 26, 2020

Douglas M. Bragg, Oregon City, argued the cause for appellant. Also on the briefs were Fred Millard and Millard & Bragg.

Douglas F. Foley argued the cause for respondent. Also on the brief were Vernon Finley and Douglas Foley & Associates, PLLC.

Before Ortega, Presiding Judge, and Powers, Judge, and Mooney, Judge.^*

MOONEY, J.

This is an insurance coverage dispute concerning a "rental dwelling policy," a domestic animal exclusion, approximately 100 cats, and the permeating odor of cat waste. The parties to the insurance policy are State Farm Fire and Casualty Company (State Farm), insurer, and Sally Phillips, insured. The insured property owner is a landlord and the policy provides coverage for certain losses to her rental properties. The insured filed the underlying breach of contract claim against State Farm after State Farm denied coverage under the domestic animal exclusion.

The trial court granted partial summary judgment in favor of State Farm, concluding that coverage for property damage caused by the cats was excluded, as a matter of law, by the domestic animal exclusion. The parties litigated the remaining issues, which were resolved in State Farm’s favor on cross-motions for summary judgment, and plaintiff thereafter filed this appeal raising several assignments of error. We write to address the timeliness of plaintiff’s appeal of the partial summary judgment ruling and, finding it to be timely, to discuss the merits of that ruling. Ultimately, we affirm. We reject without further discussion the first, second, third, and sixth assignments of error.

The operative complaint filed by the insured against State Farm alleged a single claim for relief seeking recovery for two types of damage. The parties generally referred to the two types of damage as "cat damages" and "non-cat damages." State Farm moved the trial court for an order granting partial summary judgment, arguing that it was entitled as a matter of law "to dismiss Plaintiffs’ claim for breach of contract for the cat related damage to the rental house, and for an order declaring that State Farm is not obligated to provide coverage for the claims made by the Plaintiff * * * for cat related damage due to the policy exclusion for domestic animals." The court granted the motion "regarding all damages related to, or caused by, domestic animals." The following "Limited Judgment Granting Defendant’s Motion for Partial Summary Judgment re Domestic Animal Damage" was entered on March 24, 2016:

"Based on the Order Granting State Farm Fire and Casualty Company’s Motion for Partial Summary Judgment as to the domestic animal damage, a Limited Judgment is hereby

"ADJUDGED that Defendant State Farm Fire and Casualty Company has a Limited Judgment against Plaintiff on the basis that the policy issued to Plaintiff provides no coverage [for] property damage caused by, or related to, domestic animal damage."

(Capitalization in original.)

As an initial matter, State Farm contends that plaintiff’s appeal was untimely. As explained below, we disagree and conclude that the appeal is not time barred.

A limited judgment entered in compliance with ORCP 67 B is an appealable judgment, and the notice of appeal must be filed within 30 days of its entry. ORS 18.005(13) ; ORS 19.205(1) ; ORS 19.255(1). ORCP 67 B provides that,

"[w]hen more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the court may render a limited judgment as to one or more but fewer than all of the claims or parties. A judge may render a limited judgment under this section only if the judge determines that there is no just reason for delay."

A limited judgment may be used to resolve fewer than all pending claims within a lawsuit, but only where (1) the case is entirely concluded as to a particular party or where (2) an entire claim between the parties is resolved. "[W]here an action does not involve multiple parties, in order to enter a limited judgment under ORCP 67 B, the action must involve more than one claim for relief." Lindsay v. The Nicewonger Co., Inc. , 203 Or. App. 750, 755, 126 P.3d 730 (2006). Lindsay was a wrongful death case in which the plaintiff sought to appeal the trial court’s decision to grant summary judgment dismissing the plaintiff’s request for noneconomic damages. We held that a request for noneconomic damages was not a separate claim for relief for purposes of determining whether the ruling captioned as a limited judgment qualified as a "limited judgment" under ORCP 67 B. Id. at 756, 126 P.3d 730.

We thus concluded that the limited judgment concerning noneconomic damages was not appealable. Id. at 757, 126 P.3d 730.

This case is like Lindsay . The trial court’s initial decision on summary judgment resolved the request for cat damages but it did not dismiss the entire claim for relief. See also Steele v. Mayoral , 231 Or. App. 603, 611, 220 P.3d 761 (2009) ("[A] portion of a claim may not be disposed of by a limited judgment; rather, a limited judgment must dispose of a whole claim."); Interstate Roofing, Inc. v. Springville Corp. , 347 Or. 144, 162, 218 P.3d 113 (2009) (a limited judgment must "conclusively resolve some but not all of the claims in a particular action").

Because this case involved two parties and a single claim for relief, the limited judgment was not a "limited judgment" under ORS 18.005(13)¹ and, thus, did not trigger the running of the 30-day time limit under ORS 19.255(1). Plaintiff timely filed her notice of appeal when she did so within 30 days of entry of the general judgment of dismissal, which followed resolution of the remaining issues in the case and incorporated the coverage resolution reflected in the earlier limited judgment.

Moving to the merits of the fourth and fifth assignments of error, we review the trial court’s conclusion on summary judgment that the cat damages were not covered under the policy. The parties’ arguments on appeal concern the court’s interpretation of the insurance policy, which is a question of law. Ortiz v. State Farm Fire and Casualty Co. , 244 Or. App. 355, 357, 260 P.3d 678 (2011). We review the trial court’s grant of summary judgment to determine whether there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. ORCP 47 C. There is no genuine issue of material fact if, based on the record, "no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment." Id. "In determining whether a genuine factual dispute exists, we review the record in the light most favorable to the nonmoving party," and draw all reasonable inferences in the nonmoving party’s favor. Whalen v. American Medical Response Northwest , 256 Or. App. 278, 280, 300 P.3d 247 (2013). Because the material facts relevant to the question of coverage for cat damage are not in dispute, we review the trial court’s determination for legal error.

In interpreting an insurance policy, the goal is to determine the intentions of the parties. Holloway v. Republic Indemnity Co. of America , 341 Or. 642, 649, 147 P.3d 329 (2006). The parties’ intentions are determined from the terms of the policy. Groshong v. Mutual of Enumclaw Ins. Co ., 329 Or. 303, 307, 985 P.2d 1284 (1999). We interpret those terms "according to what we perceive to be the understanding of the ordinary purchaser of insurance." Coelsch v. State Farm Fire and Casualty Co. , 298 Or. App. 207, 214, 445 P.3d 899 (2019).

Section I of the policy, entitled "Losses Insured," states that "[w]e insure for accidental direct physical loss to the property described in Coverage A and B, except as provided in Section I - Losses Not Insured." The "Losses Not Insured" section states, in part:

"1. We do not insure for loss to the property described in Coverage A and Coverage B either consisting of, or directly and immediately caused by, one or more of the following:

"* * * * *

"n. birds, vermin, rodents, insects or domestic animals. We do cover the breakage of glass or safety glazing material which is a part of a building, when caused by birds, vermin, rodents, insects or domestic animals.

"However, we do insure for any ensuing loss from items a. through n. unless the loss is itself a Loss Not Insured by this Section."

The issue in this case centers on the meaning of the phrase "directly and immediately." The policy does not define the terms "directly" or "immediately." In the absence of such definitions, we resort to aids of interpretation to discern the parties’ intent. We begin by determining whether the terms have a "plain meaning" by reference to the usual source of ordinary meaning, the dictionary. Smith v. State Farm Insurance , 144 Or. App. 442, 447, 927 P.2d 111 (1996). If the term has a plain meaning because it is susceptible to only one plausible interpretation, we apply that meaning and conclude the analysis. Groshong , 329 Or. at 308, 985 P.2d 1284 ; Ortiz , 244 Or. App. at 360, 260 P.3d 678 ; Coelsch , 298 Or. App. at 211, 445 P.3d 899.

The term "directly" is defined primarily as "1a: without any intervening space or time : next in order[;] *** b: in a straight line: without deviation of course." Webster’s Third New Int’l Dictionary 641 (unabridged ed. 2002). "Immediately" is defined primarily as "1: without intermediary : in direct connection or relation : closely." Id . at 1129. The terms are closely related and, when considered together as a phrase in the context of the insurance policy as a whole—and the policy exclusion in particular—we conclude that an ordinary purchaser of a "rental dwelling policy" would understand it to mean exactly what it says:...