Windstorm and water intrusion claims are common in Washington State. As we have seen over the years, no two windstorm and water intrusion claims are the same. Oftentimes, the small details of the potentially applicable policy language and the specific facts of the claim at issue can have a substantial impact on the coverage issues presented. Such was the case recently in Tinsley v. Amer. Family Connect Prop. & Cas. Ins. Co., 2023 WL 7501385 (W.D. Wash., Nov. 13, 2023), where a Federal District Court Judge in the Eastern District of Washington held that a homeowner’s policy did not provide coverage for loss or damage caused by water, which was defined as “flood, surface water, waves, tidal water or overflow of a body of water” and explicitly states it does not cover, “spray from any of these, whether or not driven by wind.”

In Tinsley, the plaintiff sought coverage for alleged damage to a dock and retaining wall during a windstorm, and contended that it was wind, not waves, that caused the alleged damage. Specifically, the plaintiff contended that a windstorm caused the dock to crash against the rocks beneath it and pointed to damaged bark on the anchor tree the dock was chained to. The insurer retained an engineer, who opined that given the speed of the wind and the high water levels on the alleged day of the incident, waves, rather than wind, caused damage to the dock and seawall. The insurer stood by its original denial of coverage, and the policyholder filed suit.

On summary judgment, the Tinsley Court noted how the plaintiff provided photographic proof of lower water level to further the theory that the damage was caused by wind and not water. However, the Court found that these photographs and other arguments offered by the plaintiff provided nothing more than conclusory allegations that were insufficient for the Court to find a triable issue of fact as to coverage. The Court found that the water exclusion, and other exclusions pertaining to faulty repair and maintenance, were clear and unambiguous. The Court found that the expert reports conclusively established the cause of loss as water combined with structural defects, and therefore not covered by the policy.

After finding for the insurer regarding coverage, the Tinsley Court proceeded to dismiss the plaintiff’s extracontractual claims of bad faith and violation of the Washington Insurance Fair Conduct Act (“IFCA”) since the plaintiff did not provide any evidence to dispute the investigation done by the insurer was conducted in good faith, and therefore the Court found that the denial of coverage was reasonable.

The Tinsley case provides a good example of how clear facts regarding a cause of loss can lead to a finding of no coverage for water damage claims associated with windstorms in Washington. Interestingly, the Court did not engage in an efficient proximate cause analysis, which suggests that the Court did not find sufficient evidence of an alternative cause of the loss provided by the plaintiff to support the need to engage in such an analysis in this case. The trial court granted summary judgment for the insurer, and held that the loss of the insured’s surplus PPE was not the cause of the insured’s lost business income. Rather, the trial court determined that the Governor’s order caused that loss. On appeal, the BA Ventures Court rejected the insured’s argument that the “governmental action” exclusion did not apply because the government did not take the PPE pursuant to a governmental action indicating some wrongdoing on the plaintiff’s part or a use of force. Looking at the dictionary definition of “seizure,” the Court found that an ordinary purchaser of insurance would not view “seizure” as limited to instances that involve wrongdoing or the use of force. Rather, an ordinary purchaser of insurance would understand the word more broadly as including any taking of property by legal or governmental authority. In light of this definition of “seizure,” the Court found that the insured’s delivery of surplus PPE to a hospital in early April 2020 pursuant to EO 20-10 would not qualify as a taking of property by order of governmental authority.