October 2, 2010
October 2, 2010
Oregon Supreme Court splits on defining “roof”
Oregon Law Firm
Is a plastic tarp a roof? It can be, according to the Oregon Supreme Court, which today remanded for trial a dispute between a homeowner and an insurer. In Dewsnup v. Farmers Insurance Co., the plaintiff undertook to repair the roof of his home. He removed the wood shakes and replaced them with plastic sheeting. On the first night of the repair project, a storm caused the sheeting to come loose, and rain entered the home through joints in the sublayer.
The homeowners’ insurance policy excluded coverage for water damage, except that it would cover damage that resulted if the force of wind caused an opening in the roof. The insurer contended that since the plastic sheeting was not a roof, water damage that resulted when it blew off was not covered. Justice Kistler, after surveying the small body of law on temporary roofing, held that the covering of a house is a roof if it’s “sufficiently durable to meet its intended purpose: to cover and protect a building against weather-related risks that reasonably may be anticipated.” The homeowner offered the testimony of an expert witness regarding the adequacy and functionality of the plastic sheeting as a covering. As a consequence, the court concluded it’s up to a jury to decide whether it served as a “roof” for purposes of the policy.
Justice Balmer, joined by Justice Linder, dissented, stating that no reasonable juror could conclude that the parties intended the term “roof” to include a tarp stapled to the house as a temporary covering. “It is plain that the plastic tarps were not intended to be permanent — they were a temporary expedient, which the homeowner installed on his own after he removed the shakes as part of ‘replacing the roof.'”
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