Many policyholders use tarp as a temporary roof while performing improvements or construction, but are policyholders protected when a storm blows off the tarp, allowing wind driven rain to enter a structure and damage personal property?
Policies typically contain a provision excluding losses caused by water driven by wind, unless the insured property first sustains actual damage by the force of the wind, and water then enters the property through those openings. This exclusion is considered clear and unambiguous and will be enforced according to its terms. Florida Windstorm Underwriting v. Gajwani, 934 So.2d 501, 506 (Fla. 3d DCA 2005). Thus, both wind-created openings and the passage of rain through those openings into the damaged property are often conditions precedent to recovery.
A difficult situation arises when, under the same policy exclusion, a temporary covering, such as a tarp over a roof, protects an opening in a building caused by a non-covered peril. Some jurisdictions deny coverage of personal property within a structure when water enters through the cavity the tarp was covering because the tarp – a temporary covering – did not qualify as part of the insured structure.
This issue was presented to Oregon’s Supreme Court in Dewsnup v. Farmers Ins. Co. of Oregon, 349 Or. 33 (2010). The primary issue addressed was whether a tarp constituted a “roof” within the meaning of the policyholders’ insurance policy. Plaintiffs Beth and Tim Dewsnup sustained losses due to water damage while their roof was undergoing repair. Although their insurance policy generally excluded coverage for water damage, they contended that an exception to that exclusion applied:
Whenever water damage occurs, the resulting loss is always excluded under this policy, however caused; except we do cover:
Loss or damage to the interior of any dwelling or separate structures, or to personal property inside the dwelling or separate structures caused by water damage if the dwelling or separate structures first sustain loss or damage caused by a peril described under SECTION I—LOSSES INSURED—Coverage C—Personal Property.
The trial court ruled against the policyholders on summary judgment, and the Court of Appeals affirmed. Dewsnup v. Farmers Ins. Co. of Oregon, 229 Or.App. 314, 320 (Or. Ct. App. 2009) review allowed, 348 Or. 114 (2010) and rev’d, 349 Or. 33 (2010). The Oregon Court of Appeals reasoned that the exception to the water damage exclusion did not apply because, at the time of the loss, the policyholders’ roof was not a “roof” within the meaning of the policy. In particular, the court held that a “roof,” by its ordinary definition, is permanent, and because the policyholders’ roof was undergoing repair at the time of the loss, no permanent roof was in place to which the exception could apply.
Fortunately for the Dewsnups, Oregon’s Supreme Court overruled the trial and appellate decisions and held a tarp constituted a roof, and the policy that covered the peril of wind that blew off the tarp and created an opening in the structure. The Court’s holding relied on its definition of the term “roof.” It defined “roof” to mean, “sufficiently durable to meet its intended purpose: to cover and protect a building against weather-related risks that reasonably may be anticipated.” In the Court’s view, a tarp constituted a roof.
Are policyholders covered? As long as the temporary roof is “sufficiently durable to meet its intended purpose,” policyholders can argue coverage is provided.
Sometimes it’s nice to see common sense in the interpretation of an insurance policy. If courts reach the opposite conclusion and deny these types of losses, many policyholders would be punished for maintaining and improving their structure. Nonetheless, policyholders need to contact their insurance agent before making any structural repairs to their building and verify coverage will be provided if necessary. Knowledge is power, and all policyholders have the available resources to contact their insurer and make certain coverage exists.