SHAMMIE L. FISHER, Plaintiff-Appellant,
GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant-Respondent.
Opinion No. 48
SUBSTITUTE OPINION, THE COURT'S PRIOR OPINION DATED April
28, 2017 IS HEREBY WITHDRAWN.
from the District Court of the Fourth Judicial District of
the State of Idaho, in and for Ada County. Hon. Patrick H.
Owen, District Judge.
judgment of the district court is vacated.
G. Reid, Kaufman Reid, PLLC, Boise, argued for appellant.
Jeffrey A. Thomson, Elam & Burke, P.A., Boise, argued for
an appeal out of Ada County from a judgment dismissing the
Plaintiff's action seeking to recover under an insurance
policy for the loss of her house caused when a renter, who
had an option to purchase the house, demolished it. The
district court held that coverage for such loss was excluded
under the policy. We vacate the judgment of the district
court and remand this case for further proceedings that are
consistent with this opinion.
Plaintiff, Shammie L. Fisher, was the owner of a house
located at 2510 N. 34th Street in Boise. It was a
single-story building that had been built in 1965 and
contained 1152 square feet with an attached one-car garage.
She purchased a policy of insurance covering the house from
the Defendant, Garrison Property and Casualty Insurance
Company. The policy period was from March 8, 2012, to March
8, 2013, and she renewed the policy for the period from March
8, 2013, to March 8, 2014.
Plaintiff married and decided to sell her house. She entered
into a "Real Estate Purchase and Sale Agreement"
("Purchase Agreement") dated January 23, 2012, with
Ron Reynoso. The Purchase Agreement provided that Mr. Reynoso
would purchase the property for $153, 000; that the purchase
was contingent upon him obtaining financing; that he intended
to occupy the property as his primary residence; that the
closing would occur no later than March 31, 2013; that Mr.
Reynoso would lease the property from March 15, 2012, until
March 31, 2013; and that if the he was unable to close before
March 31, 2013, the Plaintiff would extend the lease on a
month-to-month basis for a period up to September 1, 2013.
The Purchase Agreement also included a provision stating:
"Buyer intends to make certain improvements to the
property upon possession, with the intent to sell the
property for a profit which might be prior to the end of the
lease period. The buyer is required to give a monthly update
conjunction with the Purchase Agreement, the Plaintiff and
Mr. Reynoso entered into a "Rental Agreement" also
dated January 23, 2012. It stated that the move-in date was
March 1, 2012, although an addendum to the Purchase Agreement
changed the lease start date to March 15, 2012, with the rent
prorated accordingly. The Rental Agreement stated that the
Plaintiff was obligated to rent the property for a minimum
term ending on March 31, 2013 and that "Tenant shall
return said premises to Owner is as good condition as when
received, reasonable wear and tear excepted."
two months of renting the property to Mr. Reynoso, the
Plaintiff learned that he had demolished the entire house
down to the foundation. She contacted him, and he agreed to
rebuild a house on the foundation. He commenced doing so,
erecting some rough framing of some interior and exterior
walls, but in August 2013 he ceased working on the house and
left. The Plaintiff then made a claim under her insurance
policy, which the Defendant denied.
27, 2015, the Plaintiff commenced this action seeking to
recover for the loss of her house and her personal property.
She later filed a motion for partial summary judgment,
seeking a ruling that her loss was covered under the policy.
In her affidavit in support of that motion, she stated that
she had no knowledge that Mr. Reynoso intended to destroy the
house; that the improvements that he had discussed with her
included new flooring, countertops, light fixtures, paint,
and other cosmetic improvements; that she did not authorize
him to perform any work to remodel or tear down the house or
to perform any structural work; and that he said he would be
residing in the house while making improvements.
Defendant contended that the Plaintiff's loss was
excluded by two provisions of the policy: (1) an exclusion
for intentional loss and (2) an exclusion for faulty,
inadequate or defective work. The Plaintiff moved for partial
summary judgment holding that those exclusions did not apply
to the facts of this case, and the Defendant moved for
summary judgment seeking dismissal of the action based upon
district court held that there was a genuine issue of
material fact regarding the applicability of the intentional
loss exclusion, but that the exclusion for faulty, inadequate
or defective work did apply. It denied the Plaintiff's
motion for partial summary judgment, granted the
Defendant's motion for summary judgment, and entered a
judgment dismissing this lawsuit with prejudice. The
Plaintiff then timely appealed.
the District Court Err in Granting the Defendant's Motion
for Summary Judgment?
reviewing on appeal the granting of a motion for summary
judgment, we apply the same standard used by the trial court
in ruling on the motion. Infanger v. City of Salmon,
137 Idaho 45, 46-47, 44 P.3d 1100, 1101-02 (2002). We
construe all disputed facts, and draw all reasonable
inferences from the record, in favor of the non-moving party.
Id. at 47, 44 P.3d at 1102. Summary judgment is
appropriate only if the evidence in the record and any
admissions show that there is no genuine issue of any
material fact regarding the issues raised in the pleadings
and that the moving party is entitled to judgment as a matter
of law. Id.
Coverage A, the insurance policy applied to "the
dwelling on the Described Location shown in the Declarations,
used principally for dwelling purposes, including structures
attached to the dwelling." The described location was
2510 N. 34th Street, Boise, Idaho. Thus, Coverage A applied
to the dwelling at 2510 N. 34th Street, Boise, Idaho, which
was the Plaintiff's house.
perils insured against under Coverage A were "risk of
direct loss to property described in Coverage A . . . if
that loss is a physical loss to property." Thus, the
loss must be a direct physical loss to the Plaintiff's
house. The policy then stated
however, we do not insure loss:
1.involving collapse, other than as provided in Other
2.caused by: [a list of causes]
3. excluded under General Exclusions.
Under Items 1 and 2, any ensuing loss to property described
in Coverage A . . . not excluded or excepted in this policy
is no contention that the Plaintiff's loss would be
excluded pursuant to either Item 1 or Item 2. The contention
is that the loss is excluded under Item 3, which is a list of
exclusions under the title "General Exclusions."
Thus, the policy would cover a direct physical loss to the
Plaintiff's house if it was a ...