NOTICE: SLIP OPINION

(not the court’s final written decision)

The opinion that begins on the next page is a slip opinion. Slip opinions are the 

written opinions that are originally filed by the court. 

A slip opinion is not necessarily the court’s final written decision. Slip opinions 

can be changed by subsequent court orders. For example, a court may issue an 

order making substantive changes to a slip opinion or publishing for precedential 

purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits 

(for style, grammar, citation, format, punctuation, etc.) are made before the 

opinions that have precedential value are published in the official reports of court 

decisions: the Washington Reports 2d and the Washington Appellate Reports. An 

opinion in the official reports replaces the slip opinion as the official opinion of 

the court.

The slip opinion that begins on the next page is for a published opinion, and it 

has since been revised for publication in the printed official reports. The official 

text of the court’s opinion is found in the advance sheets and the bound volumes 

of the official reports. Also, an electronic version (intended to mirror the 

language found in the official reports) of the revised opinion can be found, free of 

charge, at this website: https://www.lexisnexis.com/clients/wareports. 

For more information about precedential (published) opinions, nonprecedential 

(unpublished) opinions, slip opinions, and the official reports, see 

https://www.courts.wa.gov/opinions and the information that is linked there.
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

WINDCREST OWNERS 

ASSOCIATION, a Washington nonprofit corporation,

 Appellant,

v.

ALLSTATE INSURANCE COMPANY, 

an Illinois company,

 Respondent,

STATE FARM FIRE AND CASUALTY

COMPANY, an Illinois company,

 Defendant.

No. 82836-3-I

DIVISION ONE

ORDER GRANTING MOTION TO 

PUBLISH

Respondent Allstate Insurance Company and former Respondent1 State 

Farm Fire and Casualty Company moved for publication of the opinion filed on 

December 12, 2022. Appellant Windcrest Owners Association has filed an 

answer. Amicus curiae Richmond Sequoia Homeowners Association and Stein, 

Sudweeks & Stein, PLLC also filed an answer to the motion. A panel of the court 

has reconsidered its prior determination not to publish the opinion for the above-

 1 Pursuant to a stipulated motion to dismiss by Appellant and State Farm, this court dismissed 

State Farm from the appeal on June 21, 2022.

For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
entitled matter and has found that it is of precedential value and should be 

published. Now, therefore, it is hereby

ORDERED that the written opinion filed on December 12, 2022, shall be 

published and printed in the Washington Appellate Reports.

 For the Court:

 

Judge

For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

WINDCREST OWNERS 

ASSOCIATION, a Washington nonprofit corporation

Appellant,

v.

ALLSTATE INSURANCE COMPANY, 

an Illinois company

Respondent,

STATE FARM FIRE AND CASUALTY 

COMPANY, an Illinois company, 

 Defendant.

No. 82836-3-I 

DIVISION ONE 

PUBLISHED OPINION 

CHUNG, J. —Windcrest Owners Association filed a lawsuit against Allstate 

Insurance after the company declined a claim for property damage to a building in its 

condominium development. Allstate moved for summary judgment, alleging that the 

property damage was not covered as a “collapse” and was excluded from coverage 

because it resulted from faulty construction and maintenance. The trial court granted 

summary judgment dismissing Windcrest’s claims. We affirm.

FACTS

Windcrest Condominiums, which consists of 15 units in two buildings, was 

completed in 1995. Allstate provided a commercial property insurance policy from

For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 82836-3-I /2

2

November 2002 through 2017.1

In October 2018, Windcrest notified Allstate of a property damage claim based 

on a structural report prepared by Dibble Engineers. The report noted decay consistent 

with substantial impairment of structural integrity to one of the buildings. Specifically, it 

noted, “The capacity of the building’s lateral- and gravity-force-resisting systems are 

compromised by decay that has been hidden by the exterior siding.” Dibble discovered 

severely corroded nails and “degradation or deterioration of the OSB sheathing from a 

combination of bug or pest and/or water deterioration related damage to the sheathing.” 

Dibble also described damage to wall studs based on wood rot, organic growth, and 

pest damage. According to Dibble, moisture from outside entered through the building 

cladding, penetrated the wood of the studs and sheathing, causing rot and decay which 

led to bug infestation.

Allstate retained construction consultants from Madsen, Kneppers & Associates, 

Inc. (MKA) to conduct an inspection and evaluation of causation of the damage at 

Windcrest. MKA concluded that there were sites of noted decay of structural 

components but no evidence of collapse “defined as an abrupt falling down or caving 

in,” as required for coverage by Allstate’s policy. Allstate denied Windcrest’s claim on 

August 5, 2019.

Windcrest filed suit against Allstate, alleging breach of contract and bad faith 

under the Consumer Protection Act (CPA), Chapter 19.86 RCW.

2 Allstate moved for 

 1 Windcrest was covered under a Customizer Policy from 2002-2013, and a Business 

Package Policy from 2013-2017. 

2 Windcrest also sued State Farm Fire and Casualty Insurance, but later settled and 

dismissed those claims. Stipulated Motion to Dismiss, 6/16/22.

For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 82836-3-I /3

3

summary judgment; the trial court granted the motion and dismissed the claims with 

prejudice. 

Windcrest appeals.3

ANALYSIS

The trial court dismissed Windcrest’s claims against Allstate on summary 

judgment. We review orders on summary judgment de novo. Kim v. Lakeside Adult 

Family Home, 185 Wn.2d 532, 547, 374 P.3d 121 (2016). Summary judgment is 

appropriate when there is no genuine issue of material fact and the moving party is 

entitled to judgment as a matter of law. Folsom v. Burger King, 135 Wn.2d 658, 663, 

958 P.2d 301 (1998) (citing CR 56(c)). We consider the evidence and reasonable 

inferences in the light most favorable to the nonmoving party. Kim, 185 Wn.2d at 547. 

To defeat summary judgment, the opposing party must set forth specific facts showing a 

genuine issue of material fact and may not rely on allegations or self-serving 

statements. Newton Ins. Agency & Brokerage, Inc. v. Caledonian Ins. Grp., Inc., 114 

Wn. App. 151, 157, 52 P.3d 30 (2002). 

Property insurance policies generally are one of two kinds: “named-peril” policies, 

which provide coverage only for specific enumerated risks and exclude all other risks, or 

“all-risk” policies, which provide coverage for all risks unless the specific risk is 

excluded. Vision One, LLC v. Philadelphia Indem. Ins. Co., 174 Wn.2d 501, 513, 276 

P.3d 300 (2012). “Determining whether coverage exists is a 2-step process. The 

insured must show the loss falls within the scope of the policy’s insured losses. To avoid 

 3 Although Windcrest assigned error to the trial court’s grant of summary judgment, neither 

its briefing at summary judgment nor on appeal addressed the CPA claims. Where an assignment 

of error is not argued in the briefing, we assume it is abandoned and will not consider it on appeal. 

Cummings v. Nordmark, 73 Wn.2d 322, 324, 438 P.2d 605 (1968). 

For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 82836-3-I /4

4

coverage, the insurer must then show the loss is excluded by specific policy language.” 

McDonald v. State Farm Fire & Cas. Co., 119 Wn.2d 724, 731, 837 P.2d 1000 (1992). 

An insured has the burden of proving that coverage is triggered, while the insurer has 

the burden of proving that an exclusion applies. Feenix Parkside LLC v. Berkley N. 

Pac., 8 Wn. App. 2d 381, 387, 438 P.3d 597 (2019). 

Interpretation of an insurance policy is a question of law reviewed de novo. 

Vision One, 174 Wn.2d at 512. Courts construe insurance policies as the average 

person purchasing insurance would and give the language “a fair, reasonable, and 

sensible construction.” Vision One, 174 Wn.2d at 512 (quoting Key Tronic Corp. v. 

Aetna (CIGNA) Fire Underwriters Ins. Co., 124 Wn.2d 618, 627, 881 P.2d 201 (1994)). 

When a term is undefined, we assign its ordinary meaning as provided in standard 

English language dictionaries. Overton v. Consolidated Ins. Co., 145 Wn.2d 417, 428, 

38 P.3d 322 (2002). Ambiguities in the policy and exclusions from coverage are 

construed against the drafter-insurer. Vision One, 174 Wn.2d at 512.

I. Collapse Coverage

Windcrest made a claim under the Allstate insurance policy. The all-risk policy at 

issue insures “loss or damage resulting from direct physical loss” except for enumerated 

exclusions. As one of those exclusions, Allstate does not cover any loss or damages 

caused by collapse except as provided under additional collapse coverage. Windcrest’s 

insurance policy included this collapse coverage:

D. Additional Coverage - Collapse

The coverage provided under this Additional Coverage Collapse 

applies only to an abrupt collapse as described and limited in D.1 

through D.7.

For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 82836-3-I /5

5

1. For the purpose of this Additional Coverage - Collapse, abrupt collapse 

means an abrupt falling down or caving in of a building or any part of a 

building with the result that the building or part of the building cannot 

be occupied for its intended purpose.

2. We will pay for direct physical loss or damage to Covered Property, 

caused by collapse of a building or any part of a building that is insured 

under this Coverage Form or that contains Covered Property insured 

under this Coverage Form, if the collapse is caused by one or more of 

the following:

a. Building decay that is hidden from view, unless the presence of 

such decay is known to an insured prior to collapse;

b. Insect or vermin damage that is hidden from view, unless the 

presence of such damage is known to an insured prior to collapse;

c. Use of defective material or method in construction, remodeling or 

renovation if the abrupt collapse occurs during the course of the 

construction, remodeling or renovation.

d. Use of defective material or methods in construction, remodeling or 

renovation if the abrupt collapse occurs after the construction, 

remodeling or renovation is complete, but only if the collapse is 

caused in part by:

(1) A cause of loss listed in 2.a or 2.b;

(2) One or more of the “specified causes of loss...”

The policy then limits the collapse coverage, stating as follows:

3. This Additional Coverage – Collapse does not apply to:

a. A building or any part of a building that is in danger of falling down 

or caving in;

b. A part of a building that is standing, even if it has separated from 

another part of a building;

c. A building that is standing or any part of a building that is standing, 

even if it shows evidence of cracking, bulging, sagging, bending, 

leaning, settling, shrinkage or expansion.

Finally, the Allstate policy defines “collapse” as follows:

For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 82836-3-I /6

6

With respect to buildings:

a. Collapse means an abrupt falling down or caving in of a building, or any 

part of a building, with the result that the building or part of a building 

cannot be occupied for its intended purpose;

b. A building or any part of a building that is in danger of falling down or 

caving in is not considered to be in a state of collapse.

Windcrest contends that the collapse provisions of the policies apply because 

“building components have collapsed and are no longer taking up or filling the space 

they were intended for,” and “were no longer able to support their intended purpose.” 

Allstate argues that the slow deterioration of parts of the building does not fit within the 

policy definition of “collapse.”

To interpret the provisions on collapse coverage we may use the dictionary 

definition and “a fair, reasonable, and sensible construction” of the policy language. 

Vision One, 174 Wn.2d at 512. The dictionary defines “abrupt” as “broken off: suddenly 

terminating as if cut or broken off” or “characterized by or producing the effect of a sharp 

break or sudden ending.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 6 (2002). 

Here, the key word in the dictionary definition is “sudden.” Therefore, the Allstate policy 

provides coverage when a building or part of a building suddenly falls down or caves in.

Using this definition, the evidence does not create a question of material fact as to 

whether the damage meets the policy criteria for coverage. 

Windcrest relies on evidence produced by its expert, Robb Dibble. Windcrest 

submitted Dibble’s structural report to prove collapse during the coverage periods. The 

report states: 

In our professional opinion, collapse of a building includes a building in a 

state of Substantial Impairment of Structural Integrity (SISI). SISI is 

defined as a building or part of a building that is unsafe or unfit for its 

For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 82836-3-I /7

7

function. There are conditions on Building A that include portions of the 

wall studs, sheathing, and cladding that are unable and unfit to serve their 

intended function. These components are important as structural elements 

of the building that in their current state are unfit for their ability to serve 

their intended use and are in a state of collapse.

This definition of collapse differs significantly from the insurance policy’s definition. 

Dibble defines collapse as “Substantial Impairment of Structural Integrity (SISI),” which 

exists when “a building or part of a building [] is unsafe or unfit for its function.” SISI 

does not include either suddenness or falling down or caving as necessary to meet the 

policy definitions. Windcrest cannot rely on Dibble’s definition of collapse; the controlling 

definition is the one provided by the insurance policy. See Overton 145 Wn.2d at 427 

(“Courts interpreting insurance policies should be bound by definitions provided 

therein.”). 

Dibble’s deposition testimony about the timeline for the damage also fails to 

establish the requisite suddenness and, in fact, supports the opposite conclusion:

Q. Let me ask you this. Can you say when the elements that are not there 

actually fell down or collapsed abruptly, caved in. The question is when 

that happened?

A. And I like to use a wide range. I don't hit one-year targets or two-year 

targets; I hit bigger windows. It didn't get like that in the last five years; it 

didn’t get that like in the first five years. So we can narrow that 25-year 

window down to more -- on a more probable than not basis, those 

middle 15 years.

In Dibble’s assessment, the collapse occurred over a prolonged period of time of 

approximately 15 years. However, he could not point to any evidence of an 

abrupt falling down. 

Subsequently, Dibble provided a declaration containing a conflicting 

statement that a “portion of framing actually fell down or into pieces. These

For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 82836-3-I /8

8

components all provide structural support to the building. The actual collapse of 

building components would have been sudden.” To the extent Dibble’s 

declaration contradicts his deposition testimony about the slow timeframe for 

collapse, it cannot create a material issue of fact to defeat summary judgment. 

“ ‘When a party has given clear answers to unambiguous [deposition] questions 

which negate the existence of any genuine issue of material fact, that party 

cannot thereafter create such an issue with an affidavit that merely contradicts, 

without explanation, previously given clear testimony.’ ”4 Marshall v. AC & S Inc., 

56 Wn. App. 181, 185, 782 P.2d 1107 (1989) (quoting Van T. Junkins & Assocs., 

Inc. v. United States Indus., Inc., 736 F.2d 656, 657 (11th Cir.1984)). Moreover, 

Dibble makes this statement without any evidence or explanation. A conclusory 

expert opinion, or one based on assumptions, cannot satisfy summary judgment 

standards. Doe v. Puget Sound Blood Center, 117 Wn.2d 772, 787, 819 P.2d 

370 (1991). 

In addition to the lack of suddenness, Windcrest has failed to provide evidence 

that the building or parts of the building fell down, fell to pieces, or caved in. In his 

deposition, Dibble stated that parts of the structure, specifically, the OSB sheathing, had 

degraded and fallen off and the “wood members” were “caving in and collapsing on 

themselves.” According to Dibble, other than wood fibers at a cellular level that abruptly 

fell down or caved in, the evidence of collapse in photos was “the pieces that aren’t 

 4 This is known as the “sham affidavit” doctrine. Behr v. Anderson, 18 Wn. App. 2d 341, 

364, 491 P.3d 189 (2021). “Although the rule is typically applied where a party submits an affidavit 

that contradicts the party’s own prior statements, it may also apply when a party attempts to use 

evidence from an expert to defeat summary judgment.” Id. The rule is narrowly applied such that 

the challenged affidavit must directly contradict the affiant’s unambiguous sworn testimony. Id. at 

365.

For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 82836-3-I /9

9

there anymore” and “[w]hat’s missing is what’s collapsed and fallen off the building . . . 

not what’s there, it’s what’s not there.” But the record lacks any evidence of pieces of 

the building that had fallen or caved in.

Moreover, the MKA study noted that there was damage to the buildings but 

“there is no evidence to indicate that any parts of the building are currently . . . in a state 

of collapse as defined as an abrupt falling down or caving in.” Indeed, a Windcrest 

resident and board member confirmed that no part of the building had caved in or 

abruptly fallen down. Dibble also acknowledged that neither the roof nor any part of the 

walls had fallen down or caved in. Dibble’s characterization of deteriorating internal 

structure as “collapse of building components” does not equate to the falling down or 

caving in that is necessary for the policy definitions of collapse. He did not identify any 

parts of a building that had fallen down, pointing instead to “[w]hat’s missing” as 

evidence of collapse. The policy explicitly states that even “danger of falling down or 

caving in is not considered to be in a state of collapse.” Dibble’s testimony is insufficient 

to prove the sudden falling down needed to prove actual collapse as defined by the 

Allstate policies—and the policy, not the expert’s own definition, is controlling. 

Finally, the Allstate policy requires that “the building or part of a building 

cannot be occupied for its intended purpose.” Windcrest attempts to distinguish 

“occupied” from “habitable,” arguing that “building components are no longer 

taking up or filling the space they were intended for” and are, therefore, no longer 

occupied for their intended purpose. 

There are several dictionary definitions for “occupy,” including “to fill up” and “to 

reside in as an owner or tenant.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1561

For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 82836-3-I /10

10

(2002). While “to fill up” is consistent with Windcrest’s construction of the insurance 

policy language, we must construe the policy as an average person purchasing 

insurance would. See Vision One, 174 Wn.2d at 512. When referring to a residential 

building, such as the condominium in this case, an average person would interpret “a 

part of a building cannot be occupied” to mean a portion of a building that cannot be 

“reside[d] in,” not a component part of a building, such as “OSB sheathing, WRB, and 

portions of framing,” that no longer fills up the space it once did. Therefore, the collapse 

policy requires that the building, or parts of the building, cannot be “resided in” or 

habitable. 

Windcrest has not produced evidence that the structures are no longer 

habitable. Indeed, a Windcrest resident and board member confirmed that Dibble 

never informed the board that the buildings were unsafe or unfit to occupy. The 

Windcrest buildings have not collapsed such that they can no longer be occupied 

for their intended purpose.

Windcrest has not demonstrated a collapse as defined by the Allstate 

insurance policy. The collapse coverage does not apply. 

II. Policy Exclusions

As an alternative basis for coverage, Windcrest claims the loss is not otherwise 

excluded from coverage. In an all-risk policy, “ ‘any peril that is not specifically excluded 

in the policy is an insured peril.’ ” Vision One, 174 Wn.2d at 513 (quoting Findlay v. 

United Pac. Ins. Co., 129 Wn.2d 368, 378, 917 P.2d 116 (1996)). Windcrest claims that 

damage short of a state of collapse was caused by weather—specifically, wind-driven 

rain—and is not excluded from coverage under the Allstate policy. Allstate contends the 

For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 82836-3-I /11

11

damage is not covered because the initiating cause—inadequate construction, repair, 

and maintenance—is excluded under the terms of the policy.

“[W]hen two or more perils combine in sequence to cause a loss, and a covered 

peril is the predominant or efficient cause of the loss,” the “efficient proximate cause” 

rule mandates coverage, “even if an excluded event appears in the chain of causation 

that ultimately produces the loss.” Vision One, 174 Wn.2d at 519 (citations omitted).

“Stated in another fashion, where an insured risk itself sets into operation a chain of 

causation in which the last step may have been an excepted risk, the excepted risk will 

not defeat recovery.” Villella v. Pub. Emps. Mut. Ins. Co., 106 Wn.2d 806, 808, 725 P.2d 

957 (1986), quoted in Hill & Stout, PLLC v. Mut. of Enumclaw Ins. Co., 200 Wn.2d 208, 

226, 515 P.3d 525, 535 (2022). This rule imposes liability on the insurer for loss caused 

by the covered peril, even though excluded perils contributed to the loss. Sunbreaker 

Condo. Ass’n v. Travelers Ins. Co., 79 Wn. App. 368, 375, 901 P.2d 1079.

On the other hand, “ ‘[w]hen an excluded peril sets in motion a causal chain that 

includes covered perils, the efficient proximate cause rule does not mandate exclusion 

of the loss.’ ” Hill & Stout, 200 Wn.2d at 226 (quoting Vision One, 174 Wn.2d at 519)

(emphasis in original). But an insurer may draft policy language to exclude coverage 

when “an excluded peril initiates an unbroken causal chain.” Vision One, 174 Wn.2d at 

519.

The Allstate policy at issue in this case includes this type of policy language

excluding coverage when an excluded peril is the initiating cause of the loss:

We will not pay for loss or damage caused by any of the excluded events 

described below. Loss or damage will be considered to have been caused 

by an excluded event if the occurrence of that event:

For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 82836-3-I /12

12

a. Directly and solely results in loss or damage; or

b. Initiates a sequence of events that results in loss or damage, 

regardless of the nature of any intermediate or final event in that 

sequence.5

This language is identical to language in the policy at issue in Hill & Stout. There, 

the Court analyzed this language, stating

This exclusionary language thus appears to contract with the 

efficient proximate cause in mind, excluding coverage when an 

exclusion is the only cause of loss or initiates the chain of causation 

of the loss. And we have left open that insurers can contract to say 

that coverage is excluded for a causal chain initiated by an 

excluded peril. The exclusionary language in the policy does just 

that.

Hill & Stout, 200 Wn.2d at 228-29. Likewise, the language in the Allstate policy 

excludes coverage for a causal chain initiated by an excluded peril. The policy 

specifically excludes faulty construction as well as maintenance:

3. We will not pay for loss or damage caused by or resulting from any of 

the following, 3.a through 3.c. But if an excluded cause of loss that is 

listed in 3.a. through 3.c. results in a Covered Cause of Loss, we will 

pay for the loss or damage caused by that Covered Cause of Loss.

. . .

c. Faulty, inadequate or defective:

(1) Planning, zoning, development, surveying, siting;

(2) Design, specifications, workmanship, repair, construction, 

renovation, remodeling, grading, compaction;

(3) Materials used in repair, construction, renovation or 

remodeling; or

(4) Maintenance; of part or all of any property on or off the 

described premises.

Based on this exclusion, Allstate argues that the loss is not covered. 

 5 (Amendatory Endorsement for Customizer Policies (Washington))

For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 82836-3-I /13

13

Windcrest claims the damage was caused by wind-driven rain. Windcrest argues

that because the weather exclusion does not include wind-driven rain, damage from 

wind-driven rain is therefore covered by the all-risk policy.

Regardless of whether damage from wind-driven rain is covered, given that the 

policy excludes coverage for a causal chain initiated by an excluded peril, there is a 

question as to causation. Typically, the determination of the efficient proximate cause of 

loss is a question of fact for the fact finder. Hill & Stout, 200 Wn.2d at 227. However, 

“when the facts are undisputed and the inferences therefrom are plain and incapable of 

reasonable doubt or difference of opinion ... it may be a question of law for the court.” 

Graham v. Pub. Emps. Mut. Ins. Co., 98 Wn.2d 533, 539, 656 P.2d 1077 (1983), quoted 

in Hill & Stout, 200 Wn.2d at 227.

Here, the evidence from both Allstate and Windcrest demonstrates that defective 

construction and maintenance initiated the chain of causation resulting in the loss. Even 

assuming losses resulting from wind-driven rain are covered, the evidence creates no 

factual questions as to the sequence of events that caused the loss: the faulty 

construction and maintenance created a pathway for water to enter. Allstate submitted 

both a report and deposition testimony from expert David VanDerostyne to support a

coverage exclusion due to defective construction. The report stated conclusively that 

decay and deterioration occurred over an extended number of years due to “defective 

original construction in combination with lack of repairs and/or maintenance.” Similarly, 

deposition testimony clearly established defective construction as the cause. 

VanDerostyne definitively stated, “What caused this was the combination of inadequate 

For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 82836-3-I /14

14

construction and poor maintenance.” In response to further questions, the expert 

elaborated:

Q. So I just want to clarify. When I asked you what the cause of that 

damage was, you said inadequate construction and maintenance. How 

does inadequate construction and maintenance cause that damage 

without water?

A. Because it allows the water to get in – to get into an envelope system 

that that is -- the purpose of it was to prevent water from getting into the

building. So ...

Q. So when I asked what caused this damage that we’re looking at, is it 

fair to say inadequate construction, maintenance, and water?

A. Like I said, the inadequate construction and maintenance allowed the 

water to get into the building.

Additionally, the expert explained, “This damage is decay of the wood caused by

inadequate maintenance and inadequate construction.” 

During his deposition, Windcrest’s expert Dibble likewise acknowledged the role 

of poor construction and maintenance in structural damage. He stated that “[w]ell 

constructed buildings should not leak.” Dibble agreed that “if the building was properly 

constructed, designed and maintained, the building should not have damage from water 

intrusion.” 

To rebut this evidence from both Allstate’s and Windcrest’s experts, Windcrest 

relied on Dibble’s subsequent declaration: 

This property damage was caused by weather conditions, including winddriven rain. The damage observed at Windcrest would not have occurred 

but for the weather conditions . . . Each rain event would have caused new 

and additional property damage.

However, as discussed above, Dibble’s declaration consists merely of conclusions that

contradict his unambiguous sworn testimony, and therefore, cannot raise an issue of 

material fact to defeat summary judgment. See Behr, 18 Wn. App. 2d at 365.

For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 82836-3-I /15

15

Windcrest does not allege that wind-driven rain independently initiated or caused 

the loss.6 Windcrest’s own expert agreed that had the building been properly 

constructed and maintained, there would be no damage from water intrusion. Thus, the 

loss was excluded from coverage as the defective construction and maintenance were 

excluded and were the only independent cause for the water damage.

III. Ensuing Loss

Finally, Windcrest claims the loss is covered under the “ensuing loss” provision. 

An ensuing loss clause “operates to carve out an exception to the policy exclusion.” 

Vision One, 174 Wn.2d at 514. Ensuing loss clauses limit the scope of exclusions, 

ensuring “that if one of the specified uncovered events takes place, any ensuing loss 

which is otherwise covered by the policy will remain covered.” McDonald, 119 Wn.2d at 

734. “[T]he clause breaks the causal chain between the excluded risk and losses 

caused by the excluded peril in order to provide coverage for the subsequent losses.” 

Sprague v. Safeco Ins. Co. of Am., 174 Wn.2d 524, 529, 276 P.3d 1270 (2012). 

Generally, “[e]nsuing loss provisions are exceptions to policy exclusions and should not 

be interpreted to create coverage.” Wright v. Safeco Ins. Co. of Am., 124 Wn. App. 263, 

 6 In a factually similar case involving water damage to a building that was initiated by faulty 

construction and maintenance, the court found no question of fact as to causation, reasoning

[The condo association] does not allege, for example, that wind-driven rain 

occurred during construction and deposited water on the framing or sheathing in 

quantities sufficient to initiate the sequence of events that ultimately resulted in 

the observed water damage. Likewise, [it] does not allege, and the evidence 

does not support, that wind-driven rain itself damaged the Building’s weatherresistant system, thereby creating pathways for the water to intrude. Rather, [the 

condo association’s] own expert opines that construction defects created 

pathways that allowed water to penetrate the weather-resistant barrier and 

damage underlying building components over a period of time.

Corliss Condo. Owners Ass’n v. Nat’l Surety Corp., ___ F. Supp. 3d ___, 2022 WL 4448547 at *4 

(W.D. Wash. 2022).

For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 82836-3-I /16

16

274, 109 P.3d 1 (2004). “Ensuing loss clauses may not cover losses that are otherwise 

excluded.” Vision One, 174 Wn.2d at 515. 

Here, the ensuing loss provision in the Allstate policy states, “But if an excluded 

cause of loss that is listed in 2.d.(1) through (7) results in a ‘specified cause of loss’, 

building glass breakage, or collapse, as provided in the Additional Coverage – Collapse, 

we will pay for the loss or damage caused by that ‘specified cause of loss’, building 

glass breakage or collapse.”7

Windcrest alleges this provision applies because an excluded peril resulted in 

collapse. As discussed above, Windcrest has not demonstrated collapse; therefore, the

ensuing loss provision does not apply to establish coverage for collapse. 

The ensuing loss provision also excludes coverage for “specified causes of loss.” 

This policy defines this as follows:

2. “Specified causes of loss” means the following: fire; lightning; explosion; 

windstorm or hail; smoke; aircraft or vehicles; riot or civil commotion; 

vandalism; leakage from fire-extinguishing equipment; sinkhole collapse; 

volcanic action; falling objects; weight of snow, ice or sleet; water damage.

The policy then specifically defines “water damage”:

c. Water damage means accidental discharge or leakage of water or 

steam as the direct result of the breaking apart or cracking of a plumbing, 

heating, air conditioning or other system or appliance (other than a sump 

system including its related equipment and parts), that is located on the 

described premises and contains water or steam.

 7 Excluded causes of loss listed in 2.d.(1) through (7) include (1) wear and tear; (2) rust, 

corrosion, fungus, decay, deterioration, hidden or latent defect or any quality in property that 

causes it to damage or destroy itself; (3) smog; (4) settling, cracking, shrinking or expansion; (5) 

nesting or infestation, or discharge or release of waste products or secretions, by insects, birds, 

rodents or other animals; (6) mechanical breakdown; (7) causes of loss to personal property 

including dampness or dryness of atmosphere, change in or extreme temperature, marring and 

scratching.

For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 82836-3-I /17

17

Windcrest does not allege water damage that meets this definition. Therefore, the 

ensuing loss provision does not cover the loss.

CONCLUSION

The evidence shows no abrupt or sudden falling down of any part of a building 

such that it could not be occupied for its intended purpose, so the policy coverage for 

collapse does not apply. Based on the evidence properly before the trial court, the

damage to the condominium originated with faulty construction and maintenance. The 

Allstate policy explicitly excludes coverage for faulty construction and maintenance, as 

well as for any loss initiated by those excluded perils. Finally, the loss is not covered by 

the ensuing loss provision. Therefore, Windcrest’s loss is excluded from policy 

coverage. The trial court properly granted summary judgment for Allstate and dismissed 

Windcrest’s claims.

Affirmed. 

WE CONCUR:

For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.