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Lyons v. Fireman's Fund Insurance Co.11/13/2003
Five years after Phillip and Mary Lyons noticed deterioration in their expensive custom windows, they discovered the damage might be insured under their homeowner's policy. The Lyons filed a claim, but it was denied as untimely. Their ensuing action against the insurance company met a similar fate: The trial court granted summary judgment for the insurer on the ground the suit was barred by the policy's one-year limitation provision. The trial court rejected the Lyons' claim the limitation period was tolled due to "delayed discovery." We affirm.
Facts
In 1990, the Lyons hired a glass manufacturer/supplier to install custom-made, dual pane, beveled, laminated glass into French windows and doors throughout their Harbor Island home. In 1996, the Lyons noticed damage to their glass: It was cloudy and appeared to be "delaminating." The manufacturer/supplier failed to resolve the problem despite the Lyons' complaints.
In the spring of 1999, the Lyons hired a glass expert, Brian Hale, to advise them on the condition of the windows. In a written report dated April 15, 1999, Hale opined that the damage to the laminated glass was caused by " rolonged exposure to water and solvents[.]" He explained that " he edges of the glass within the wood frames have been exposed to moisture in the form of water and or water vapors. The absence of weep holes and the several coats of exterior paint have not allowed for the necessary drainage of water." He also faulted the use of putty around the edges of the glass within the steel frame, which both created a "drainage problem" and exposed the glass edges to solvents.
Three months later, the Lyons sued the glass manufacturer/supplier, alleging the laminated glass was defective or improperly installed. During the course of that litigation, the Lyons asked Hale to perform destructive testing on the windows. Hale reported to the Lyons the results of that testing in a letter dated July 3, 2001.
Hale wrote that the destructive tests "confirm my original report. Primarily, the penetration and prolonged accumulation of water, in this case associated with wind driven rain, accommodated the delamination of the glass and the deterioration of the wood frames." The Lyons assert this letter from Hale informed them of a significant new fact: that "wind from storms" caused the damage to the glass.
Wind damage was a covered peril under the Lyons' all-risk homeowners' insurance policy. On the other hand, the policy specifically excluded coverage for defective workmanship or materials used in construction or remodeling. After receiving Hale's report on the results of the destructive testing, the Lyons filed a property damage claim with their insurer, Fireman's Fund. The Lyons asserted the damage to their glass was caused by wind.
On July 30, Fireman's Fund denied the Lyons' claim as untimely. The Lyons then sued Fireman's Fund on the policy and for bad faith. The insurer moved for summary judgment on the ground the lawsuit violated the provision in the Lyons' insurance policy requiring any action to be "started within one year after the date of loss."
In opposing the motion, the Lyons conceded they first noticed the glass damage in 1996. However, they contended their notification duty under the policy was not triggered until 2001, when they first learned "that a covered peril (wind) played any role in causing problems with the laminated glass." They argued that under "controlling case law," the policy's limitation period was tolled until they discovered a covered cause of the damage.
The trial court rejected the Lyons' tolling argument and entered summary judgment for the insurer
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