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Goodwin v. Wright3/27/2000
r's liability would extend far beyond the limits of the intended coverage.'
Goodwin's argument ignores both the language of the policy and the purpose and availability of the separate products -- completed operations hazard coverage, which Eastside did not purchase. Eastside's policy covered only damages arising on the premises of his business due to his products or completed operations. If his basic policy is read to cover off-premises damages arising from negligent omissions or acts, the products -- completed operations hazard exclusion is meaningless, and the separate coverage available for this hazard is superfluous.
We thus reject Goodwin's subordinate ambiguity and negligence arguments. As applied here, the policy does not exclude coverage under the products hazard provision and at the same time grant coverage for damages arising from incomplete work, because here the work is complete. We thus return to our basic holding. The cylinder was a product and damages caused by the cylinder are excluded under the products -- completed operations hazard exclusion. If considered under the completed operations exclusion, Eastside's work was complete and therefore excluded. The trial court did not err in determining coverage was barred.
Goodwin's Motion to Strike
On appeal, Goodwin moved to strike a portion of Western National's brief because it contained hearsay stricken by the trial court. The trial court ordered stricken 'that portion of Leonard Flanagan's Affidavit and that portion of the Declaration of Bob Mullin which attempts to incorporate the recorded statement highlights of Jeff Hoyle and the recorded statement highlights of Kenneth Goodwin.' Western National argued RAP 9.12 permits appellate review of the stricken material.
RAP 9.12 specifies what the record must contain on appeal from an order granting or denying summary judgment:
On review of an order granting or denying a motion for summary judgment the appellate court will consider only evidence and issues called to the attention of the trial court. The order granting or denying the motion for summary judgment shall designate the documents and other evidence called to the attention of the trial court before the order on summary judgment was entered. Documents or other evidence called to the attention of the trial court but not designated in the order shall be made a part of the record by supplemental order of the trial court or by stipulation of counsel.
Courts have read and applied RAP 9.12 quite literally. Evidence called to the attention of the trial court is properly before us, whether or not it was considered by the trial court. The contested declaration here was called to the attention of the trial court, and is included in the court's list of documents it considered. We thus conclude the reference in Western National's brief is not technically improper. The material is, however, objectionable hearsay, and the trial court did not err in refusing to consider it. We further find it irrelevant to our analysis.
Attorney's Fees
Western National requests attorney fees and costs on appeal. Goodwin does not contest this request, and under RCW 6.27.230, fees and costs are mandatory. Western National is ordered to comply with RAP 18.1.
Affirmed.
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