LOSS OF USE OF VIEW HELD NOT COVERED

LOSS OF USE OF VIEW HELD NOT COVERED 275_C005

LOSS OF USE OF VIEW HELD NOT COVERED BY UMBRELLA LIABILITY POLICY

The owner of a new house sued his umbrella liability insurer for the cost he incurred in the successful defense of a suit brought against him by a neighbor. The neighbor had alleged that the house being built blocked the neighbor's view. The insurer had declined defense in the lawsuit initiated by the neighbor, stating that the policy was not applicable because the complaint did not allege physical damage to tangible property.

The trial court granted judgment in favor of the insurance company, concluding that claim for obstruction of view was not covered by the policy. The insured appealed. The appeal court said that "a duty to defend. . . .is to be determined by the allegations contained in the complaint." It had previously addressed the "obstruction of view" issue in Prudential property and Casualty Insurance Company v. Lawrence, 45 Wn. App. 111, 114,724, P.2d 900 (1981).

The umbrella policy under review in the Prudential case defined property damage as "damage to or destruction of tangible property," including loss of its use. An underlying homeowners policy defined property damage as "physical injury to or destruction of tangible property," including loss of its use. In the case, the court said that, because the umbrella policy did not use the term "physical injury" in the insuring agreement, its broader coverage encompassed "damage involving diminution in the value of the property, even when no physical damage has otherwise occurred."

The court said that the applicable umbrella policy in the case presently under review did contain the limiting "physical injury" terms, included in the Homeowners policy but absence from the umbrella policy in the cited case. It concluded that "loss of use of a view does not constitute property damage as defined" in the umbrella policy under review.

Accordingly, the insurer did not have a duty to defend its insured. The judgment of the trial court was affirmed in favor of the insurance company and against the insured.

(GUELICH ET AL., Appellants v. AMERICAN PROTECTION INS. CO., Respondent. WA Court of Appeals, Division One. No. 21802-6-I. May 15, 1989. 54 Wn. App. 117. CCH 1989 Fire and Casualty Cases, Paragraph 1984.)