The Oregon Supreme Court Holds That Plastic Sheeting May Constitute A "Roof"
In Dewsnup v. Farmers Insurance Company of Oregon, SC S057895 (September 16, 2010), the Oregon Supreme Court considered “what is a ‘roof’ within the meaning of plaintiffs’ homeowners’ insurance policy.” The policy excluded coverage for loss resulting from water damage. However, the exclusion contained an exception for loss to the interior and contents of a dwelling, caused by water damage when “the direct force of wind or hail damages the building causing an opening in a roof . . . and the rain . . . enters through this opening.”
The undisputed facts revealed that the insured had removed a portion of his home’s roof in order to make repairs, exposing a plywood sublayer. To protect the home during the repairs, the insured installed plastic sheeting over the plywood sublayer. However, a storm blew some of the sheeting loose, and when the insured attempted repairs he ended up falling off the roof and bringing down more of the sheeting with him. As a result, rain water penetrated the plywood sublayer and damaged the home’s interior and contents.
Because the policy did not define “roof,” the question posed to the Courts was whether the plastic sheeting qualified as a “roof” such that the exception to the water damage exclusion applied. The Court of Appeals held that a “roof” involved some degree of permanence, writing: “If someone attempted to sell a house that was covered by such a plastic sheet, we doubt that any reasonable buyer would believe that he or she was buying a house that had a ‘roof.’ Most likely, the buyer would say, ‘Where’s the roof?’”
The Supreme Court reversed, noting that the common dictionary definitions for “roof” did not include a permanence requirement. Rather, the Court applied a functional test, holding that a “roof” only needs to “be sufficiently durable to meet its intended purpose: to cover and protect a building against weather-related risks that reasonably may be anticipated.” Because the insured had presented expert testimony that the plastic sheeting “would have been adequate to protect the home for one or two years if necessary,” the Court found a fact question as to whether or not the plastic sheeting qualified as a “roof.”
It is important to note what Dewsnup does not hold. At least one insured’s attorney is already citing Dewsnup for the proposition that the presence of an undefined policy term, e.g., “roof,” creates a factual issue which precludes summary judgment. This is not true. The Dewsnup Court did not depart from the long-standing rule that insurance policies are construed as a matter of law in Oregon. The factual question which precluded summary judgment was not the meaning of the term “roof” (indeed, the Court applied its own definition as a matter of law), but, rather, whether the plastic sheeting at issue in the case met that definition. Genuine disputes over the material facts which comprise an insured’s claim (e.g., when certain property damage occurred) have always been sufficient to defeat summary judgment. In contrast, disputes over the meaning of undefined policy terms are resolved as a matter of law and, therefore, do not preclude summary judgment. Dewsnup does not change that dynamic.
