A roof may be considered many things. It could be an airstrip for Santa and his reindeer or an oasis for James Taylor or the Drifters when this old world starts getting them down. But, can it be a tarp? Some FC&S subscribers posed that very question.

One subscriber's client, insured under a business owners' policy, contracted to have his roof changed from a flat rolled roof to a metal gable roof. The contractor cut the roof edges to install a new sill plate on the exterior block walls so the new roof trusses could be properly secured. At the end of each day, the contractor covered the edge of the roof with tarps.

During the construction, a windstorm ripped the tarps off the roof and allowed water to enter the building, resulting in more than $400,000 in damage to the contents.

The insurer denied the claim based on policy language that requires a roof to be damaged before the policy covers water damage to the contents. The insurer contended that the tarps used to cover the roof were not part of the roof. Because the roof did not sustain any damage, the insurer said, there was no coverage for the water damage to the contents. But the insured asked if the tarps should be considered part of the roof during the course of repairs.

Another subscriber wondered the same thing for a loss under a homeowners' policy. The insured suffered water damage to the contents of his home when, in the process of remodeling, the contractor removed a part of the roof and replaced it with a plastic sheet, which he nailed down and secured with weights. During a storm, high winds ripped the plastic sheeting, allowing rain to enter, causing extensive damage.

The insurer denied coverage under the HO 00 03 05 01 based on the exclusion for loss caused by rain to property in a building, unless the “direct force of wind or hail damages the building causing an opening in a roof or wall.” The company stated that the plastic sheeting did not constitute a roof.

Standard commercial property cause-of-loss forms often contain limitations for damage to the interior of buildings or structures caused by rain, snow, sleet, ice, sand, or dust unless the building first sustains damage to its roof or walls through which the rain or other matter enters.

Similarly, homeowners' forms may contain wording similar to the following, which is found under the personal property insuring agreement of the HO 00 03 05 01 in the description of the windstorm or hail peril: “This peril does not include loss to the property contained in a building caused by rain, snow, sleet, sand, or dust unless the direct force of wind or hail damages the building causing an opening in a roof or wall and the rain, snow, sleet, sand, or dust enters through this opening.”

Since the term “roof” is usually an undefined term in these policies, we turn to the commonly accepted meaning found in Merriam-Webster's online dictionary: “The cover of a building;” “material used for a roof,” and “something suggesting a roof: as a canopy of leaves and branches.” Absent a specific policy definition, the insured is entitled to the broadest lay interpretation of the term.

Courts have weighed in on what constitutes a roof, with varying results. For instance, in one case — Homestead Fire Ins. Co. v De Witt, 245 P.2d 92 (1952) — the Supreme Court of Oklahoma ruled that a canvas covering was a roof. It involved a construction company that was building an addition to a school. In order to join the new and old sections, the company left an opening in the roof of the old building, covering it with canvas to protect it. A sudden windstorm arose, ripped off the canvas, and rain damaged the interior.

Even though this case preceded the easy read policies of today, it contained similar language that required roof damage before the insurer would cover water damage to the interior or its contents.

The court ruled that because the contractors “evidently considered [as] adequate” the canvas that had been placed on the opening, this “brought it within the provisions of the windstorm clause, since except for the action of the wind, the opening was adequately closed.” The canvas was a roof. This case has been cited numerous times over the years and has not been overturned.

However, a more recent decision from the U.S. District Court for the District of Oregon provided a different outcome.

In Aginsky v. Farmers Insurance Exchange, 409 F.Supp.2d 1230 (D.Ore. 2005), after the entire roof of an apartment building was removed with the intention of a replacement being installed, the project stalled due to structural concerns. Tarps were laid flat over the roof opening and eventually a temporary roof was installed. Despite these efforts and due to high winds, rain water entered the building and caused damage.

The policy contained the familiar limitation that damage to the interior of a building caused by rain is covered only if the roof or walls sustain damage through which the rain enters.

In examining the meaning of “roof,” the court said, “A temporary structure consisting of wooden framing and a plastic tarp would not be considered a 'roof' by any reasonable person. The policy language anticipates coverage of a completed, permanent roof, not one in the process of repair and temporarily covered awaiting completion of the repairs.” The court found that the loss was not caused by damage to the roof and ruled in favor of the insurer.

Since policies generally do not define “roof,” temporary tarps and plastic sheeting designed to fulfill the purpose of the roof may fall within the accepted meaning of the word. It seems coverage should be afforded for such losses. Until policy language changes, though, what makes a roof a roof will most likely continue to be decided by the courts.

After all, while a tarp alone could not act as a roof in supporting portly Santa, or even the more willowy James Taylor, the question is, does it fill the bill in the world of insurance?

Susan Massmann, CPCU, is an assistant editor for FC&S and may be reached at smassmann@nuco.com.

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