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Cle Elum Bowl Inc. v. North Pacific Insurance Co.6/8/1999
right of private occupancy." Id. at 586. If so, then the claims were for personal injury and were covered under the policy. Id. The court concluded claims alleging trespass, nuisance and interference constitute personal liability under policies that provide coverage for personal injury arising from wrongful entry or invasion. Id. at 571.
Mr. Lanphere contends the collapsed roof "interferes mightily" with his occupancy rights. Accordingly, he argues he suffered personal injury under the personal liability section of the North Pacific policy. He misunderstands a basic tenet of Kitsap County: the theory underlying the claim against the insured, not the nature of the alleged injury, determines whether personal injury coverage or bodily injury and property damage coverage applies. Kitsap County, 136 Wn.2d at 579-80. To determine whether personal injury coverage applies, the court must first look to the type of offense alleged. Id. at 580. Unlike the claims in Kitsap County, the claims here for breach of contract and negligence are not analogous to claims for the offenses of wrongful entry or invasion of the right of private occupancy. Id. The average purchaser of insurance would not reasonably expect the personal liability provisions to cover a breach of contract and negligence that, as Mr. Lanphere alleged in his complaint, deprived him "of the income generated by his ownership of the building that was destroyed."
Conclusion
On balance, the fair and sensible reading of the policy is that it provides liability coverage for bodily injury to third parties and damage to their property. Damage to the premises leased and occupied by Cle Elum, the insured, is not covered by the commercial general liability or the personal injury policies and is in fact explicitly excluded. Accordingly, North Pacific was relieved of its duty to defend and the trial court properly entered summary Judgement dismissing the suit. Kirk, 134 Wn.2d at 561. Because Cle Elum does not prevail, it is not entitled to the attorney fees that are awarded when an insured assumes the burden of legal action to obtain the benefit of its insurance contract. Findlay v. United Pac. Ins. Co., 129 Wn.2d 368, 380, 917 P.2d 116 (1996).
Affirmed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
Schultheis, C.J.
WE CONCUR:
Sweeney, J.
Brown, J.
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