Is a Plastic Tarp a "Roof?"
September, 2010
By
Elizabeth D. Wright
It could be, according to a recent decision from the Oregon Supreme Court. On September 16, 2010, the Oregon Supreme Court issued its opinion in Dewsnup v. Farmers Ins. Co. of Oregon, and once again it found a seemingly simple concept very complicated.
In Dewsnup, an insured was repairing his home's roof when a storm blew away the protective tarp he was using as a temporary covering. Injured during an attempt to replace the tarp, Dewsnup did not cover the plywood sheathing before water penetrated and damaged the property inside. The policy excludes water damage except when "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."
Farmers argued that the plastic tarp was not a "roof," and a rip or opening in a plastic tarp cannot be the basis of a covered property damage claim. Both the trial court and the Court of Appeals agreed that there was no insurance coverage for the claim as a matter of law. The Court of Appeals held that "in no reasonable sense would the sheet of plastic constitute [a] roof."
The Oregon Supreme Court reversed, explaining that "[n]o roof is permanent." It held that a covering which is sufficiently durable to serve the functional purpose of protecting a dwelling from weather can still be a "roof" within the ordinary understanding of that term.
While insurers can craft a definition of "roof" to work around the Dewsnup decision in the future, the opinion as a whole suggests that any policy definition may have to state not only what something is, but also what it is not, in order to be enforced by the Oregon courts.