Diep v. California Fair Plan Assn

In Diep v. California Fair Plan Assn. (1993) 15 Cal.App.4th 1205, the Second Appellate District ruled that plastic sheeting over a portion of a roof under construction was not a roof under policy language similar to that here. There, a contractor that was hired to repair a roof removed a portion of the roof and covered the opening with plastic sheeting. During two rainstorms, the plastic sheeting was blown open, and rain entered and flooded the property, resulting in damage to the plaintiff's warehouse. Plaintiff sued, among others, his insurer, whose policy provided in relevant part that the "'Company shall not be liable for loss to the interior of the building(s) or the property covered therein caused: (1) by rain . . . whether driven by wind or not, unless the building(s) covered or containing the property covered shall first sustain an actual damage to roof or walls by the direct action of wind . . . and then shall be liable for loss to the interior of the building(s) or the property covered therein as may be caused by rain . . . entering the building(s) through openings in the roof . . . made by direct action of wind . . . .'" (15 Cal.App.4th at p. 1208.) The Court of Appeal in Diep affirmed summary judgment in favor of the insurer on the ground that "in the context of this building and this policy, plastic sheeting is not a roof" and that "the opening to the interior of the building was not caused by wind or hail, but by workmen." (15 Cal.App.4th at p. 1211.) It reasoned in part: "We could go on, but a roof is commonly considered to be a permanent part of the structure it covers. 'Roof' is not an ambiguous or vague word. The plastic sheeting was used here because part of the roof had been removed. The breach in the roof was not caused by wind or hail, but by the workmen who removed that portion of the roof needing repair. . . . Everyone connected to this project, including the insured, realized part of the roof was missing, and could not have considered the plastic sheeting constituted anything other than a nonstructural band-aid. The parties to the insurance contract could not have originally intended the result plaintiff seeks here." ( Diep, supra, 15 Cal.App.4th at pp. 1208-1209.)