PER CURIAM:
Larry Ward ("Ward") appeals from an order granting summary judgment in favor of the issuer of his homeowners insurance policy, Travco Insurance Company ("Travco"), and declaring that he is not entitled to coverage for damages to his home allegedly caused by the drywall used therein. Although the district court found that Ward had suffered a loss within the policy's coverage, it also concluded that coverage was excluded by four provisions: the latent defect exclusion, the faulty material exclusion, the corrosion exclusion, and the pollution exclusion.
Pursuant to the Supreme Court of Virginia's Rule 5:40, we now certify the following question of Virginia law to the Supreme Court of Virginia:
This court acknowledges that the Supreme Court of Virginia may restate this question.
Counsel of record for Larry Ward is Michael F. Imprevento, Jeffrey A. Breit, and John W. Drescher, Breit Drescher, Imprevento & Walker, PC, 1000 Dominion Tower, 999 Waterside Drive, Norfolk, Virginia, 23510; and Richard J. Serpe, Law Offices of Richard J. Serpe, PC, 580 East Main Street, Suite 310, Norfolk, Virginia, 23510. Counsel of record for Travco Insurance Company is John B. Mumford, Jr. and Kathryn I. Kransdorf, Hancock Daniel Johnson & Nagle, P.C., 4701 Cox Road, Suite 400, Glen Allen, Virginia, 23060; and Stephen E. Goldman, Wystan M. Ackerman, Daniel F. Sullivan, and Jamie M. Landry, Robinson & Cole LLP, 280 Trumbull Street, Hartford, Connecticut, 06103.
The underlying facts of this appeal are undisputed. On May 1, 2007, Ward purchased a newly constructed home located in Virginia Beach (the "Residence"). On May 7, 2007, Travco issued an "all risk" homeowner's insurance policy (the "Policy") for the Residence. The Policy initially covered the Residence from May 7, 2007 to May 7, 2008; Ward twice renewed the Policy, extending his coverage to May 7, 2010.
The Policy "insure[s] against risk of direct physical loss to property described in [the Policy]." J.A. 38. The Policy does not define "direct physical loss"; however, it does define "Property Damage" as "physical injury to, destruction of, or loss of use of tangible property." J.A. 32. In addition, the Policy also contains several exclusions, four of which are relevant here. Under these four exclusions, the Policy excludes from coverage any damage to the Residence caused by:
The Residence contains walls that were constructed using Chinese-manufactured drywall.
Ward filed a lawsuit in Virginia state court on August 10, 2009, against the development and supply companies who constructed the Residence.
Following a hearing, the district court entered an order granting in part and denying in part Travco's motion for summary judgment. As an initial matter, the district court found that Ward's Residence did suffer a direct physical loss, concluding that "direct physical loss" includes "total loss of use" and that physical damage to the property is not necessary when "the building in question has been rendered unusable by physical forces." J.A. 697-98.
However, despite finding that Ward had met his burden of bringing himself within the coverage of the Policy, the district court also found that each of the four relevant exclusions unambiguously applied to operate as a bar to coverage under the Policy. First, the district court found the damage to the Residence was a loss caused by a latent defect. The court relied specifically on
Second, the district court concluded that coverage is barred by the faulty materials exclusion. Relying on the ordinary meaning of "faulty" and "defective," the district court concluded that the faulty material exclusion applies even to property that may be serving its intended purpose because although the drywall in the Residence had not collapsed or physically deteriorated, it was not serving its intended purpose as a component of a livable residence.
Third, the district court determined that coverage for loss caused by corrosion is barred by the corrosion exclusion. Although "corrosion" is not defined in the Policy, the district court found the exclusion applied because the ordinary meaning of corrosion includes the "action or process of corroding" and that the damage to the structural, mechanical and plumbing systems in the Residence was caused by the "action or process of corroding." J.A. 707. Moreover, in light of the weight of authority in other jurisdictions, the district court found that the exclusion precludes recovery for damages caused by corrosion regardless of what caused the corrosion or how suddenly it occurred. J.A. 707.
Finally, the district court found the pollution exclusion also applied. While acknowledging that pollution exclusions are frequently litigated and that there is a split of authority as to the breadth of pollution exclusions, the district court concluded that, "[u]nder Virginia law, pollutant exclusions are not limited to `traditional environmental pollution.'" J.A. 711. In reaching this conclusion, the district court relied on
In light of its conclusions, the district court entered declaratory judgment that the Policy does not provide coverage for the damages presently claimed by Ward, but denied Travco's request for a declaratory judgment that the Policy does not cover any subsequent secondary but as-yet-unclaimed losses. J.A. 717.
On appeal, Ward contends the district court erred in holding that the Policy exclusions barred coverage for his claimed losses. Under Virginia law, courts interpret insurance policies in accordance with the intent of the parties as determined from the words used in the policy.
Ward contended below and continues to contend on appeal that Travco failed to meet its burden of establishing that the exclusions apply.
Ward likewise makes specific arguments regarding each exclusion. With regard to the latent defect exclusion, Ward argues that "latent defect" is susceptible to multiple meanings, as illustrated both on the face of the Policy and in case law. First, the term "latent defect" is qualified in the Policy by the modifier "that causes it to damage or destroy itself." J.A. 38. Thus, Ward argues the term must mean something more than merely a defect that is undetectable or undiscoverable. Moreover, Ward notes the apparent conflict between
Ward also notes that the history of the latent defect exclusion, as well as the insurance industry's own definition of "latent defect," indicates that the latent defect exclusion was intended to apply to "a loss due to any quality in the property that causes property to damage or destroy
With regard to the faulty materials exclusion, Ward argues the term "faulty material" is ambiguous, and that the exclusion is inapplicable here because of the unique nature of the "defect" in the drywall, to wit: even while the drywall emits sulfuric gasses that destroy other components of the residence, it continues to serve its intended purpose as a wall and divider and does not deteriorate or breakdown. In other words, the drywall is not subject to the faulty material exception because it continues to serve its normal function and intended purpose as a structural element of the residence and has not caused damage to itself.
With regard to the corrosion exclusion, Ward argues that his loss is the actual corrosion of the metals caused by the sulfuric gases rather than any subsequent damage to any other part of the Residence otherwise resulting from this corrosion. He argues that the loss is not caused by another house component which damaged the house after it had been corroded; rather, the damage is the corrosion itself.
Finally, with regard to the pollution exclusion, Ward argues the meaning of "pollutant" is ambiguous under Virginia law. Ward argues the pollution exclusion was not intended to apply to product liability claims but was intended to limit or exclude coverage for past environmental contamination. Ward notes that although the district court relied on
Several factors justify certification. Considering these arguments and with this legal background, we find no clear controlling Virginia precedent to guide our decision. There are no disputed fact issues, and the questions presented are pure questions of state law which have not been squarely addressed by the Supreme Court of Virginia. In addition, we recognize the importance of allowing the Supreme Court of Virginia to decide questions of state law and policy with such far-reaching impact. The question of how to interpret these standard exclusions, in light of the increasing number of insured homeowners who are seeking to recover under their first-party property insurance policies for losses resulting from the drywall, is a matter of exceptional importance for state insurers and insureds. In short, we are uncertain whether the Supreme Court of Virginia would conclude that each of these four exclusions is unambiguous and reasonable in its form, scope, and application in light of the unusual nature of the losses involved, and the answer to this question is sufficiently unsettled and dispositive that certification is warranted.
Therefore, because no controlling Virginia appellate decision, constitutional provision, or statute appears to address the precise question presented in this case, and the answer to the certified question is potentially determinative of this appeal, the question is properly subject to review by the Supreme Court of Virginia on certification.
Accordingly, pursuant to the privilege made available by the Supreme Court of Virginia Rule 5:40, we respectfully hereby ORDER:
(1) that the question stated above be certified to the Supreme Court of Virginia for answer;
(2) that the Clerk of this Court forward to the Supreme Court of Virginia, under the official seal of this Court, a copy of this Order of Certification, together with the original or copies of the record before this Court to the extent requested by the Supreme Court of Virginia; and
(3) that the Clerk of this Court fulfill any request for all or part of the record simply upon notification from the Clerk of the Supreme Court of Virginia.