In 2006, the shake roof on Beth and Tim Dewsnup's house began deteriorating. Tim, a contractor by trade, undertook to replace the shakes in June of that year. He removed them down to the plywood sub-roof layer on the first day and then covered the plywood with a sheet of polyethylene plastic. He secured it to the plywood with half-inch staples in the center and one-inch by two-inch bats nailed with eight-penny nails on the sides. Everything was done in a workmanlike manner. The next day, a storm with high winds ripped one sheet of plastic away and rain entered the house through the joints of the plywood sheets. Tim went up on the roof to replace the sheet but lost his footing and fell, taking the remaining sheets with him, and injuring his back. Due to his injury, Tim could not get back on the roof that day and the rain continued to enter through the plywood joints, causing major damage to the house and to the Dewsnup's personal property.
The Dewsnups filed a claim under their homeowners insurance written by Farmers Insurance Company of Oregon (Farmers). Farmers denied the claim, stating that the loss was caused by water damage. The Dewsnups brought legal action for breach of the insurance policy and Farmers moved for summary judgment, arguing that the undisputed facts proved that the water damage exclusion applied. The Dewsnups responded, indicating that the exclusion did not apply because the damage resulted either from windstorm or a falling object, that being Tim himself. Farmers responded, indicating that the two exceptions to the water damage exclusion did not apply because both required that either the windstorm or the falling object must damage the roof and a sheet of plastic was not a roof.
The trial court did not address any of the contentions but concluded that the policy did not apply because the structure ceased to be a dwelling when Tim removed the roof shakes and replaced them with the temporary plastic covering and it was no longer the dwelling that the parties agreed to insure. The Dewsnups appealed, arguing that the change in the type of roofing material did not cause the dwelling to cease to be a dwelling and that the trial court should have concluded that the loss was caused by either windstorm or a falling object as a matter of law that would establish coverage under the policy. Farmers contended that the trial court's finding was correct but that, if the appeals court found otherwise, neither of the exceptions to the exclusion applied unless the roof was first damaged. Farmers contended that a roof is an outside cover of permanent roofing material, such as slate, wood or metal, and that plastic is not a roof.
The appellate court concluded that the term "roof" has an unambiguous meaning, one that does not include the plastic sheeting or tarps that Tim placed over the house while the shakes were being replaced. A plastic tarp stapled into place could not realistically be considered a "roof" or even part of a roof's construction. As a result, the tarps damaged or blown away by the wind and as a result of Tim's fall were not themselves the house's "roof." They were simply a temporary protective cover for the roof. In addition, the Dewsnups did not contend that if the tarps had not been part of the roof they were otherwise part of the building so as to be encompassed within the first peril. Because the tarps were not part of the roof, damage to them did not bring the Dewsnups' loss into either of the exceptions to the water damage exclusion. It concluded that the trial court was correct in granting Farmer's motion for summary judgment and affirmed its judgment.
Court of Appeals of Oregon. Beth Dewsnup and Tim Dewsnup, Plaintiffs-Appellants, v. Farmers Insurance Company of Oregon, Defendant/Respondent. 06CV4790CC; A136394. Argued and submitted January 21, 2009. Decided July 1, 2009. 229 Or.App. 314, 211 P.3d 354