119 Wn.2d 711, P.2d 599, STATE v. BELGARDE

Sept. 1992

[No. 58872-4. En Banc. September 17, 1992.]

STATE v. BELGARDE

THE STATE OF WASHINGTON, Respondent, v. KERMIT A. BELGARDE, Petitioner.

[1] Statutes Construction Meaning of Words Absence of Statutory Definition. The meaning of an undefined statutory term may be determined by resort to a dictionary.

[2] Trial "Case" What Constitutes Distinguished From "Trial". The term "case" as used in its legal sense is a general term for an action, cause, suit, or proceeding and pertains broadly to the prosecution of a legal right by one party against another. It is not synonymous with the term "trial", which more narrowly pertains to a particular set of proceedings occurring within the broader boundaries of a case.

[3] Judges Disqualification New Proceeding Determination. For purposes of RCW 4.12.040 and .050, under which a party is entitled to disqualify the assigned judge if the judge has not yet made any discretionary rulings in the case, a proceeding constitutes a new case if it is one that (1) presents new issues arising out of (2) new facts occurring since the entry of a previous final judgment.

[4] Judges Disqualification Affidavit of Prejudice Timeliness Following Reversal on Appeal. After the judgment of a trial court is reversed and remanded on appeal, a party is not entitled to disqualify the trial judge that presided over the first trial without cause if the retrial involves the same factual and legal issues previously litigated and the trial judge had made discretionary rulings in the prior trial.

[5] Judges Superior Court Judge Retirement authority Over Pending Cases Constitutional and Statutory Amendments Effective Date Retirement Date. Const. art. 4, 7 (amend. 80) and RCW 2.08.180, which permit retiring, elected superior court judges, without the written consent of the parties, to preside over pending cases in which they have made discretionary rulings, apply to cases in which the trial judge retires after the effective date of the constitutional amendment (December 2, 1987).

[6] Constitutional Law Construction Purpose Voters Pamphlet. Legislative history and materials found in the official voters pamphlet may be used to determine the purpose of a constitutional amendment.

[7] Constitutional Law Construction Intent of Drafters In General. Constitutional provisions are construed to give effect to the manifest purposes for which they were adopted.     

Nature of Action: Prosecution for first degree murder and attempted first degree murder. The Supreme Court, at 110 Wn.2d 504, reversed the Court of Appeals affirmance of a judgment of guilty of both charges and remanded for a new trial. Retrial was set for February 6, 1989, before the same trial judge. After a defense motion for mistrial was granted during jury selection, a third trial began on March 6, 1989, also before the same trial judge. The trial judge's term of office expired January 9, 1989.

Superior Court: The Superior Court for Skagit County, No. 84-1-00065-1, Walter J. Deierlein, Jr., J. Pro Tem., on April 11, 1989, entered a judgment on a verdict of guilty of both charges.

Court of Appeals: The court, at 62 Wn. App. 684, affirmed the judgment, holding that the defendant's affidavit of prejudice was untimely, that the defense had constructively consented to the trial judge's appointment as a judge pro tempore, that the admission of hearsay evidence was harmless error, and that the testimony of the defendant's attorney constituted invited error.

Supreme Court: Holding that the affidavit of prejudice was not timely filed and that the trial judge was constitutionally authorized to sit as a pro tempore judge on retrial, the court affirms the Court of Appeals and the judgment.

Robert H. Gombiner and Nance, Iaria & Gombiner, for petitioner.

Michael E. Rickert, Prosecuting Attorney, and K. Garl Long, Senior Deputy, for respondent.

UTTER, J. In a third trial, a jury found petitioner Kermit Belgarde guilty of first degree murder and attempted first degree murder. He now seeks a new trial. Two issues are presented: whether Belgarde timely filed his affidavit of prejudice and whether the trial judge had authority to preside over Belgarde's retrial after his retirement. Review of RCW 4.12.050 and article 4, section 7 of the Washington State Constitution indicates Belgarde's affidavit was not timely filed and the retired trial judge had authority to preside over the retrial. We affirm the convictions.

I

Petitioner was initially convicted of first degree murder and attempted first degree murder in 1984 following a trial presided over by Judge Walter Deierlein in the Superior Court for Skagit County. In May of 1988, this court reversed petitioner's convictions. We remanded for a new trial because the prosecutor made repeated improper and prejudicial statements in his closing argument. State v. Belgarde, 110 Wn.2d 504, 506-12, 755 P.2d 174 (1988).

On July 8, 1988, the parties appeared in the Superior Court for Skagit County before Judge Deierlein to set a trial date. Petitioner filed an affidavit of prejudice against Judge Deierlein, asking him to recuse himself from the retrial, which motion was denied. Judge Deierlein reasoned the motion was not timely filed since he made many discretionary rulings in the course of petitioner's first trial. A trial date was not set at this time.

On July 27, 1988, petitioner appeared before Judge Deierlein with new counsel. Counsel requested a trial date in February or March of 1989. 1


1 At a pretrial motion before Judge Deierlein on July 15, 1988, Belgarde waived his speedy trial guaranty.


Judge Deierlein noted his hesitancy to begin the trial in February or March because his term expired in January. After speaking with Commissioner Mullen, who was running for Judge Deierlein's position, the judge noted he could "set an order following the election that the trial actually start February 6th before Judge whomever is elected . . .." Report of Proceedings, at 79 (July 27, 1988). The judge noted that trial could be set in November or December if the defense wished. The defense said it preferred the later trial date. The court then scheduled trial to begin on February 6, 1989.

Jury selection began on February 6, 1989, with Judge Deierlein presiding. On the second day of voir dire, one prospective juror remarked in the presence of the others that Belgarde had "been proved guilty once." Judge Deierlein granted the defense's motion for a mistrial. Jury selection began again on March 6, 1989, again with Judge Deierlein presiding. The jury found him guilty of first degree murder and attempted first degree murder and he was sentenced to life imprisonment.

Petitioner appealed, and the Court of Appeals affirmed his convictions. State v. Belgarde, 62 Wn. App. 684, 815 P.2d 812 (1991). He then sought review of the Court of Appeals' decision in this court. His petition for review raised four issues. This court granted review on only two of the four issues: whether petitioner's affidavit of prejudice was timely filed; and whether Judge Deierlein had jurisdiction to preside over the retrial after he had retired. See Order Granting Discretionary Review (Mar. 3, 1992).

II

Belgarde contends he timely filed his affidavit of prejudice against Judge Deierlein. The issue he raises is one of first impression: when a judgment of a trial court is reversed on appeal and remanded for a new trial, is a party to the original trial entitled to disqualify the judge that presided over the first trial without cause? Based on the discussion that follows, we hold such a party may not disqualify the original trial judge from presiding over the retrial without cause.

RCW 4.12.040 provides in part that no judge "shall sit to hear or try any action or proceeding when it shall be established as hereinafter provided that said judge is prejudiced against any party or attorney . . .". RCW 4.12.040(1). Under RCW 4.12.050, any party or attorney may establish the requisite prejudice by filing a motion and an affidavit alleging the judge is prejudiced against him. See RCW 4.12.050. 2


2 To establish this prejudice RCW 4.12.050 requires . . . "That such motion and affidavit [be] filed and called to the attention of the judge before he [sic] shall have made any ruling whatsoever in the case . . .[,] the hearing of which the party making the affidavit has been given notice, and before the judge presiding has made any order or ruling involving discretion . . .." RCW 4.12.050.


This statutory timeliness requirement bars a change of judge without cause when, prior to a party's motion for a change of judge, the judge selected to preside over trial (1) has made a discretionary ruling after the party moving for disqualification has become a party to the action and (2) the ruling is one of which the party moving for a change of judge has been given adequate notice. RCW 4.12.050; Marine Power & Equip. Co. v. Department of Transp., 102 Wn.2d 457, 460-61, 687 P.2d 202 (1984). If a party complies with the statutory provisions, prejudice is deemed established, and the judge no longer has authority to proceed further into the merits of the case. Marine Power, at 460; State v. Cockrell, 102 Wn.2d 561, 566, 689 P.2d 32 (1984); State v. Dixon, 74 Wn.2d 700, 702, 446 P.2d 329 (1968).

Belgarde argues retrial following reversal on appeal is a different "case" than the case in which the original trial was held, thus entitling him to exercise his right to one change of judge per action under RCW 4.12.050. See, e.g., State ex rel. Mauerman v. Superior Court, 44 Wn.2d 828, 271 P.2d 435 (1954). There, this court held that a proceeding to modify the custody provisions of a final divorce decree, upon allegations of changed conditions since the entry of the decree, was a new proceeding within the meaning of RCW 4.12.040 and .050 that entitled a party to file an affidavit of prejudice against the judge who presided over the first proceeding. Mauerman, at 830. This court reasoned the modification action was a new proceeding because it "pre-sent[ed] new issues arising out of new facts occurring since the entry of the decree." Mauerman, at 830.

In State v. Clemons, 56 Wn. App. 57, 782 P.2d 219 (1989), review denied, 114 Wn.2d 1005 (1990), the Court of Appeals interpreted "case" in RCW 4.12.050 to include "pretrial, trial, posttrial and appellate proceedings." Clemons, at 59. There, the Court of Appeals held a retrial following a mistrial due to a hung jury was the same "case" for purposes of RCW 4.12.050. The Court of Appeals, however, specifically declined to consider the issue now presented, whether on remand after appeal RCW 4.12.050 allows a party to disqualify the original trial judge without cause. Clemons, at 59.

Belgarde's solution for avoiding this sort of prejudice is to read "case" as being interchangeable with "trial". He claims the trial court's resentment of the appellate court's reversal will always engender bias toward the party on retrial following reversal. In order to avoid prejudice against a party in this situation, the party must be allowed to file an affidavit of prejudice against the trial judge to prevent him or her from presiding over the retrial.

[1, 2] Although RCW 4.12.050 does not define the word "case", when a statutory term is undefined, dictionaries may be consulted to determine its meaning. American Legion Post 32 v. Walla Walla, 116 Wn.2d 1, 8, 802 P.2d 784 (1991). In its legal sense, "case" is a general term for an action, cause, suit, or proceeding. Black's Law Dictionary 195 (5th ed. 1979). "Action" is a similar general term and has been defined as the prosecution of a legal right by one party against another. Black's Law Dictionary 26 (5th ed. 1979). In distinction to these general terms, "trial" refers to the judicial examination of a cause of action and is but a phase or portion of the criminal or civil action. See Black's Law Dictionary 1348 (5th ed. 1979). The definitions of these terms militate against Belgarde's position that this court read "case" to mean "trial". "Trial" refers to a relatively finite set of proceedings within the more or less unbounded parameters of a "case" or "action". We conclude in RCW 4.12.050 "case" is used synonymously with "action" or "proceeding" and cannot be used interchangeably with "trial".

[3, 4] When this court has had to decide if a proceeding was a new "case" for determining if a party is entitled to a change of judges as a matter of statutory right, it has utilized the analytic framework developed in State ex rel. Mauerman v. Superior Court, supra. Under Mauerman, a new proceeding or case is one that (1) presents new issues arising out of (2) new facts occurring since the entry of final judgment. Retrial of petitioner following this court's reversal of his convictions is not a new proceeding or case. This court reversed petitioner's convictions because of inflammatory statements made during closing argument. The action was remanded for retrial on the same factual and legal issues.

Existing authority and the meaning of "case" indicate that "case" as used in RCW 4.12.050 means "action" or "prosecution" and thus includes the original trial. Judge Deierlein made many discretionary rulings in the course of presiding over Belgarde's first trial. As such, the timeliness requirement of RCW 4.12.050 barred the disqualification of Judge Deierlein without cause. While we share petitioner's concern that appellate reversal of trial court rulings may engender bias toward a party upon the return of the action to the trial court, we are not, however, prepared to assume as a matter of law that such bias is always present when a case returns to the trial court after an appellate court reverses a trial court decision.

III

Belgarde contends that his convictions are void because Judge Deierlein was not properly appointed as judge pro tempore when he presided over Belgarde's retrial. We find that Judge Deierlein was authorized to preside over Bel-garde's second and third trials, but rest our decision on different grounds than the Court of Appeals.

The term of all superior court judges is 4 years and expires on the second Monday in January. Const. art. 4, 5. Judge Deierlein's term expired on January 9, 1989. Belgarde's second trial, which ended in a mistrial, began on February 6, 1989. Belgarde's third trial, which resulted in conviction, began on March 6, 1989. Judge Deierlein was a retired judge when he presided over both of Belgarde's retrials. The record does not reveal when it was decided Judge Deierlein, rather than the newly elected Skagit County judge, would preside over the trial.

A case in superior court may be tried by a judge pro tempore. Const. art. 4, 7 (amend. 80); RCW 2.08.180. The appointment of a judge pro tempore must be "agreed upon in writing by the parties litigant, or their attorneys of record . . .." Const. art. 4, 7; RCW 2.08.180; National Bank of Wash. v. McCrillis, 15 Wn.2d 345, 356, 130 P.2d 901, 144 A.L.R. 1197 (1942). Alternatively, a party who consents to the appointment of a judge pro tempore orally in open court cannot later claim the absence of a written consent invalidates the appointment. State ex rel. Cougill v. Sachs, 3 Wash. 691, 694, 29 P. 446 (1892). The requirement that the parties consent to a judge pro tempore is jurisdictional. National Bank of Wash. v. McCrillis, supra at 360.

Belgarde correctly notes that the record in this case does not contain a writing executed by the parties appointing Judge Deierlein as judge pro tempore, and there is also no evidence of an express affirmative oral consent made by Belgarde or his attorney in open court agreeing to have Judge Deierlein preside over the retrial. Belgarde thus contends that, under McCrillis, Judge Deierlein had no authority to preside over Belgarde's retrial.

The Court of Appeals rejected this argument and found instead that petitioner had impliedly consented to have Judge Deierlein preside as a judge pro tempore. State v. Belgarde, 62 Wn. App. 684, 693, 815 P.2d 812 (1991). The Court of Appeals noted that the trial judge had specifically informed both petitioner and his attorney that he would be retiring before the start of the retrial.

We cannot agree. There is no authority which states that the written consent of a party or the party's attorney that article 4, section 7 of the Washington State Constitution requires can be satisfied by acquiescent conduct alone. Prior decisions only hold that when there is no written consent appointing a judge pro tempore, oral consent to such appointment given in open court is sufficient to satisfy the consent requirement of article 4, section 7 of our state constitution. See State ex rel. Cougill v. Sachs, supra. When there is no writing appointing a superior court judge pro tempore, only the express and affirmative oral consent of a party or the party's attorney is sufficient to satisfy the consent requirement of article 4, section 7 of our state constitution. See McCrillis, at 358-60 (written consent to have judge pro tempore preside over trial); State ex rel. Cougill v. Sachs, supra (oral consent in open court to have judge pro tempore preside over trial); see also Bellevue v. Acrey, 103 Wn.2d 203, 691 P.2d 957 (1984) (right to a jury trial); State v. Wicke, 91 Wn.2d 638, 591 P.2d 452 (1979) (right to a jury trial).

Under this approach, there must be an affirmative and knowing oral consent by a party or his attorney to have a judge pro tempore preside over the trial when the parties fail to execute a writing appointing a judge pro tempore. See, e.g., Bellevue v. Acrey, supra at 207; State v. McNairy, 20 Wn. App. 438, 440, 580 P.2d 650 (1978). At a minimum, this requires a showing of an affirmative verbal act made in open court. The record does not reveal that such an affirmative verbal act ever occurred.

The State argues that, due to the adoption of a constitutional amendment, the lack of petitioner's affirmative and knowing oral consent to have a judge pro tempore preside over his retrial did not result in a violation of article 4, section 7 of the Washington State Constitution. In 1987, the voters adopted amendment 80 to the Washington Constitution, adding the following sentence to Const. art. 4, 7:

However, if a previously elected judge of the superior court retires leaving a pending case in which the judge has made discretionary rulings, the judge is entitled to hear the pending case as a judge pro tempore without any written agreement.

Senate Joint Resolution 8207, 50th Legislature; Laws of 1987, 1st Ex. Sess., p. 2815. 3


3 The same Legislature amended RCW 2.08.180 to incorporate the language of amendment 80. Amended RCW 2.08.180 took effect on January 1, 1988. See Laws of 1987, ch. 73, 1.


Belgarde argues in response that the provisions of Const. art. 4, 7 (amend. 80) do not apply to him. He submits that Const. art. 4, 7 (amend. 80) cannot be applied to a case which was pending when amendment 80 was adopted because the amendment is in derogation of his constitutional right to be tried by an elected superior court judge.

Belgarde essentially argues that article 4, section 7 of the Washington State Constitution expresses constitutionally required procedures which protect the article 4, section 5 right to be tried by an elected superior court judge. While article 4, section 7 does express constitutionally required procedures that may, in fact, function in this manner, article 4, section 5 does not function as petitioner argues. Article 4, section 5 of our state constitution requires that at least one superior court judge in each county shall be elected:

There shall be in each of the organized counties of this state a superior court for which at least one judge shall be elected by the qualified electors of the county at the general state election . . ..

Const. art. 4, 5. This provision necessarily envisions that unelected superior court judges will perform judicial duties and exercise judicial powers. Moreover, Const. art. 4, 5 does not expressly grant a right to a trial presided over by an elected superior court judge, the premise upon which Belgarde's argument turns.

Although the Washington Constitution, article 4, section 5, does not provide textual support for Belgarde's position, he contends decisions of this court recognize a constitutional right to a trial presided over by an elected superior court judge. We disagree. Contrary to Belgarde's suggestion, this court in State v. Hastings, 115 Wn.2d 42, 793 P.2d 956 (1990) did not decide that the right to be tried by an elected superior court judge is a substantive right. Rather, the court addressed the issue whether consent was a jurisdictional requirement for appointing a district court judge pro tempore. Hastings, at 44-46.

Belgarde also misreads the decision in State v. Sain, 34 Wn. App. 553, 557, 663 P.2d 493 (1983). In Sain, the Court of Appeals addressed the narrow question whether an attorney could consent to his client's being tried by a judge pro tempore in the face of the client's express refusal in open court to the appointment of a judge pro tempore to preside over the trial. To the extent that petitioner reads Sain as prohibiting attorneys from appointing a judge pro tempore, this reading conflicts with the express language of Const. art. 4, 7 (amend. 80) 4


4 "A case in the superior court may be tried by a judge, pro tempore, . . . agreed upon in writing by the parties litigant, or their attorneys of record . . .." (Italics ours.) Const. art. 4, 7.


and must therefore fail. Sain simply requires that an attorney must in fact be authorized by his or her client to consent to a trial presided over by a judge pro tempore.

We also disagree with the Court of Appeals' conclusion that article 4, section 7 (amendment 80) operates retroactively when applied to this case. Rules used to determine when a statute operates retroactively can also be used to determine if a constitutional amendment operates retroactively. 16 C.J.S. Constitutional Law 36 (1984). This court has stated

A statute is not retroactive merely because it relates to prior facts or transactions where it does not change their legal effect. It is not retroactive because some of the requisites for its actions are drawn from a time antecedent to its passage . . ..

State v. Scheffel, 82 Wn.2d 872, 879, 514 P.2d 1052 (1973), appeal dismissed, 416 U.S. 964 (1974). The key to determining if Const. art. 4, 7 (amend. 80) operates retroactively is whether the event triggering its application occurred before or after the amendment took effect:

A statute operates prospectively when the precipitating event for [its] application . . . occurs after the effective date of the statute, even though the precipitating event had its origin in a situation existing prior to the enactment of the statute.

Aetna Life Ins. Co. v. Washington Life & Disab. Ins. Guar. Ass'n, 83 Wn.2d 523, 535, 520 P.2d 162 (1974). The event triggering the application of Const. art. 4, 7 (amend. 80) is the retirement of an elected judge who has pending cases, not the fact that a case is pending. The fact that petitioner's case was pending when Const. art. 4, 7 (amend. 80) became effective is thus an antecedent fact, not the event triggering the application of Const. art. 4, 7 (amend. 80). Accordingly, Const. art. 4, 7 (amend. 80) could be retroactively applied here if Judge Deierlein had retired before the amending language took effect.

[5] Amendment 80 took effect on December 2, 1987, when, pursuant to RCW 29.62.130, the Secretary of State certified the results of the 1987 general election and the Governor proclaimed the passage of amendment 80. RCW 29.62.130; see State ex rel. Washington State Sportsmen's Coun., Inc. v. Coe, 49 Wn.2d 849, 307 P.2d 279 (1957) (applying RCW 29.62.130). Judge Deierlein, however, retired on January 9, 1989. Thus, applying Const. art. 4, 7 (amend. 80) here is not retroactive because Judge Deierlein retired after the effective date of the amendment. This is not a situation where, before the passage of amendment 80 was proclaimed, the trial judge retired and continued to preside without both parties' consent.

Having responded to the reasons that Belgarde has advanced for not applying Const. art. 4, 7 (amend. 80) to this case and found them unpersuasive, it is proper to consider the effect of this provision on the present case. The language of amendment 80 indicates that once a judge has been elected to the superior court, upon his or her retirement, no written agreement is required for the judge to hear pending cases in which he or she has made discretionary rulings. Thus, amendment 80 did not eliminate the rule that written or oral consent in open court is necessary to appoint a judge pro tempore, see National Bank of Wash. v. McCrillis, 15 Wn.2d 345, 360, 130 P.2d 901, 144 A.L.R. 1197 (1942); State ex rel. Cougill v. Sachs, 3 Wash. 691, 29 P. 446 (1892). Rather, amendment 80 created a new means for appointing a judge pro tempore in a very limited set of circumstances.

[6] This conclusion is reinforced by the legislative history and materials in the official voters' pamphlet. 5


5 In interpreting a constitutional amendment, this court examines the legislative history and materials in the official voters' pamphlet. Tacoma v. Taxpayers of Tacoma, 108 Wn.2d 679, 687, 743 P.2d 793 (1987).


The official ballot title for amendment 80 stated:

Shall the constitution empower superior court judges, after retirement, to complete pending cases in which they had made discretionary rulings?

1987 Voters' Pamphlet, at 8. The ballot title plainly indicates that the purpose of the amendment was only to permit elected judges to complete their pending cases after they retired without any agreement by the parties that the retired judge be appointed a judge pro tempore. See 1987 Voters' Pamphlet, at 9. 6


6 That this was the purpose of Const. art. 4, 7 (amend. 80) is further confirmed by the committee hearings held on SJR 8207. The tape recording of the hearing reveals that the primary impetus for the amendment was the Department of Ecology v. Acquavella, 100 Wn.2d 651, 674 P.2d 160 (1983) water rights litigation which, by 1987, had been pending in Yakima County Superior Court for several years and was still many years from completion. Judge Stauffacher was willing to complete the Acquavella litigation following his retirement, but without a constitutional amendment, under the McCrillis case, any of the approximately 2,500 parties could prevent him from doing so by refusing to consent to his appointment as a judge pro tempore. See Senate Judiciary Committee Hearing, remarks on SJR 8207 (Jan. 20, 1987).


[7] A constitutional provision should be construed to give effect to the manifest purpose for which it was adopted. Citizens for Financially Responsible Gov't v. Spokane, 99 Wn.2d 339, 346, 662 P.2d 845 (1983). Because Judge Deierlein was an elected judge who retired after having made discretionary rulings in Belgarde's pending case, we conclude he was authorized to preside over Belgarde's retrial without the parties' written or oral consent and affirm the Court of Appeals.

DORE, C.J., and BRACHTENBACH, DOLLIVER, ANDERSEN, DUR-HAM, SMITH, GUY, and JOHNSON, JJ., concur.

724, 837 P.2d 1000

Oct. 1992

[No. 58078-2. En Banc. October 1, 1992.]

McDONALD v. STATE FARM

DAVID T. MCDONALD, ET AL, Respondents, v. STATE FARM FIRE AND CASUALTY COMPANY, Petitioner.

[1] Judgment Summary Judgment Review Role of Appellate Court. When reviewing a decision on a motion for summary judgment, an appellate court engages in the same inquiry as the trial court.

[2] Insurance Construction of Policy Question of Law or Fact. The interpretation of an insurance policy is an issue of law.

[3] Insurance Scope of Coverage Review Standard of Review. When an insured and insurer do not dispute the facts, an appellate court applies the de novo standard to its review of lower court decisions regarding insurance coverage.

[4] Insurance Scope of Coverage Proof Shifting Burdens of Proof. When an insurance policy provides general coverage subject to exceptions, the initial burden is on the insured to show that the loss falls within the scope of the policy's insured losses. If the insured meets this burden, the insurer must show that the loss is excluded by specific policy language.

[5] Insurance Claim for Loss Causation Efficient Proximate Cause Rule Predominant Cause Intervening Excluded Clause. A loss is covered under the efficient proximate cause rule if a peril specifically insured against sets other causes into motion which, in an unbroken sequence, produce the result for which recovery is sought, even though other events, including the last event, within the chain of causation are excluded from coverage.

[6] Insurance Claim for Loss Causation Efficient Proximate Cause Rule Question of Law or Fact. For purposes of the efficient proximate cause rule, the determination of whether a single act or event is the proximate cause of the insured's loss is a question of fact.

[7] Insurance Construction of Policy Average Purchaser In General. Insurance policy language is interpreted as it would be understood by an average person.

[8] Insurance Construction of Policy Ambiguity What Constitutes In General. An insurance policy provision is not ambiguous unless it is fairly susceptible to two different reasonable interpretations.

[9] Insurance Construction of Policy Superfluous Language. Insurance policies are interpreted in a manner that gives effect to each provision.

[10] Insurance Construction of Policy Structure of Policy. The structure of an insurance policy is an important objective source of its meaning and intent.

[11] Insurance Construction of Policy Ambiguity What Constitutes Confusion. A confusing insurance policy provision is not necessarily also ambiguous.

[12] Insurance Ensuing Loss Provision Effect. An ensuing loss insurance provision (i.e., a provision that, if a specified uncovered event takes place, any ensuing loss which is otherwise covered by the policy remains covered) does not have the effect of enlarging the list of items covered under the policy. When contained in the exclusions section of the policy, the provision cannot be interpreted as granting coverage.

[13] Pleading Amendment Discretion of Court Review. A trial court's decision on a motion to amend a pleading is reviewed under the abuse of discretion standard.

[14] Pleading Amendment Discretion of Court Prejudice. Whether a motion to amend a pleading should be granted depends largely on whether the amendment will prejudice the nonmoving party.

[15] Pleading Amendment Discretion of Court Time-Barred Claim. A trial court does not abuse its discretion by denying a motion to amend a pleading to add a claim barred by a contractual limitation period.     

DURHAM, J., did not participate in the disposition of this case.

Nature of Action: Insureds sought damages from their insurer for breach of contract. The insurer had rejected claims for insurance coverage for the insureds' house which was damaged when fill supporting the foundation gave way.

Superior Court: After denying a motion to amend the complaint to add a claim for earlier damages to the house and to raise a Consumer Protection Act theory, the Superior Court for Pierce County, No. 88-2-01717-0, J. Kelley Arnold, J., on March 3, 1989, granted a summary judgment in favor of the insurer.

Court of Appeals: In an unpublished opinion noted at 59 Wn. App. 1061, the court reversed the judgment and granted judgment in favor of the insureds.

Supreme Court: Holding that exclusions in the insurance policy were not ambiguous, that the policy did not cover losses caused by defective construction or materials and the resulting foundation cracking and earth movement, and that the trial court did not abuse its discretion by denying the motion to amend the complaint, the court reverses the decision of the Court of Appeals and reinstates the judgment.

Reed McClure, by William R. Hickman and Pamela A. Okano, for petitioner.

Hight Green & Yalowitz, by William P. Hight and Michael K. McCormack, for respondents.

Neil G. Dorfman, I. Franklin Hunsaker, and Celeste T. Stokes on behalf of the United States Automobile Association, amicus curiae for petitioner.

Sidney R. Snyder, Jr., and Ronald S. Dinning on behalf of Public Employees Mutual Insurance Company, Unigard Insurance Company, Safeco Insurance Company of America, Mutual of Enumclaw Insurance Company, and North Pacific Insurance Company, amici curiae for petitioner.

Craig H. Bennion and Thomas M. Jones on behalf of Grange Insurance Association, amicus curiae for petitioner.

Bryan P. Harnetiaux and Robert H. Whaley on behalf of Washington State Trial Lawyers Association, amicus curiae for respondents.

UTTER, J. This case involves an insurance coverage dispute. The McDonalds sued State Farm Fire and Casualty Company (State Farm) for breach of contract. They claimed State Farm failed to indemnify them for property losses the McDonalds asserted were covered by a State Farm home-owners' insurance contract. The Court of Appeals reversed the trial court's grant of summary judgment to State Farm and ordered summary judgment entered in favor of the McDonalds. We reverse the Court of Appeals, finding there is no coverage under the insurance policy for the efficient proximate cause of the McDonalds' losses or the resulting losses themselves. The trial court's grant of summary judgment in favor of State Farm is reinstated.

I

Respondents own a home overlooking Carr Inlet at Lakebay, Washington. The home was built in 1984. Following heavy rains in January 1986, the ground (fill) on the side of the house nearest the hill slope slid away, causing the adjacent foundation of the house to crack and tilt in the direction of the slide.

The property was insured by State Farm under a policy that covered the property in the event of "accidental direct physical loss," subject to a number of specific exclusions described in the policy section entitled "Losses Not Insured". The policy exclusions addressed foundation cracking, 7


7 The foundation cracking exclusion states:

"We do not insure for loss to the property described in Coverage A either consisting of, or directly and immediately caused by, one or more of the following:

"i. settling, cracking, shrinking, bulging, or expansion of pavements, patios, foundation, walls, floors, roofs or ceilings; . . .." State Farm Homeowners' Policy, Section 1 Losses Not Insured; Clerk's Papers, at 11.


earth movement, 8


8 The earth movement exclusion states:

"We do not insure under any coverage for loss (including collapse of an insured building or part of a building) which would not have occurred in the absence of one or more of the following excluded events. We do not insure for such loss regardless of: a) the cause of the excluded event; or b) other causes of the loss; or c) whether other causes acted concurrently or in any sequence with the excluded event to produce the loss:

". . . .

"b. Earth Movement, meaning any loss caused by, resulting from, contributed to or aggravated by earthquake; landslide; mudflow; sinkhole; erosion; the sinking, rising, shifting, expanding, or contracting of the earth. . . ." State Farm Homeowners' Policy, Section 1 Losses Not Insured; Clerk's Papers, at 12.


and faulty workmanship and materials. 9


9 The faulty workmanship and materials exclusion states:

"We do not insure under any coverage for loss consisting of one or more of the items below:

"a. conduct, act, failure to act, or decision of any person, group, organization or governmental body whether intentional, wrongful, negligent, or without fault;

"b. defect, weakness, inadequacy, fault or unsoundness in:

". . . .

"(2) design, specifications, workmanship, construction, grading, compaction;

"(3) materials used in construction or repair; or . . .

"of any property (including land, structures, or improvements of any kind) whether on or off the residence premises.

"However, we do insure for any ensuing loss from items a. and b. unless the ensuing loss is itself a Loss Not Insured by this Section." State Farm Home-owners' Policy, Section 1 Losses Not Insured; Clerk's Papers, at 12.


The policy also contained a condition that any "action" brought against State Farm "must be started within one year after the occurrence causing loss or damage."

The McDonalds reported the loss to State Farm, which sent an adjuster to investigate the loss. After an investigation, State Farm then denied the claim under a policy exclusion for earth movement and any loss resulting from earth movement.

Twenty-seven thousand dollars was spent by the Mc-Donalds on repairs for the damage caused by the January 1986 rains. After another period of heavy rains in March 1987, on approximately March 5, 1987, the repairs failed and the fill slid away from the house a second time. Similar damage occurred to the foundation. After the McDonalds reported the loss, an adjuster inspected the damage and State Farm again denied coverage.

On March 2, 1988, the McDonalds sued State Farm for breach of contract due to State Farm's failure to indemnify them for their March 5, 1987, property damage. Their retained soils engineers determined the cause of the 1987 damage to the house was the faulty design and construction of the filled area near the foundation with unsuitable fill materials.

State Farm moved for summary judgment on February 8, 1989, and argument was set for March 3, 1989. On February 15, 1989, the McDonalds moved to amend their complaint by adding claims seeking coverage for the initial, January 1986, property damages and for violation of the Consumer Protection Act, RCW 19.86. The McDonalds then filed a cross motion for summary judgment on February 21, 1989.

The motions for summary judgment were argued on March 3, 1989. State Farm agreed that the "efficient proximate cause" of the March 1987 damage to the McDonalds' home was the poor construction of the filled area adjacent to the foundation. State Farm in fact noted there was no evidence suggesting any other cause for the loss. The trial court found the policy specifically excluded coverage for faulty construction and the "ensuing loss[es]" of earth movement and foundation cracking and granted State Farm's motion for summary judgment. The trial court also denied the motion to amend the complaint, reasoning the McDonalds were contractually barred from recovering the 1986 losses from State Farm and, inasmuch as there was no coverage under the policy, State Farm did not unreasonably deny coverage.

The McDonalds appealed the trial court's summary judgment ruling and its denial of their motion to amend their complaint. In an unpublished opinion, the Court of Appeals reversed and directed summary judgment be entered for the McDonalds on the coverage issue. The Court of Appeals did not address the merits of the trial court's ruling on the motion to amend 10


10 The McDonalds failed to devote any argument in their briefs to the Court of Appeals on that issue.


but affirmed the trial court's order denying the motion to amend.

The Court of Appeals read the ensuing loss clause of the exclusions to be a grant of coverage for loss caused by faulty materials and construction. Finding coverage for the faulty 1987 repairs, the Court of Appeals decided the foundation cracking and earth movement exclusions (policy exclusions 1 and 2) were attempts to limit coverage that violated the efficient proximate cause rule announced in Graham v. Public Employees Mut. Ins. Co., 98 Wn.2d 533, 538, 656 P.2d 1077 (1983). State Farm filed a motion for reconsideration. Following the denial of its motion for reconsideration, State Farm sought review by this court.

II

[1-3] The coverage issue was decided on cross motions for summary judgment. This court engages in the same inquiry as the trial court when reviewing a decision regarding summary judgment. Roller v. Stonewall Ins. Co., 115 Wn.2d 679, 682, 801 P.2d 207 (1990). Interpretation of an insurance contract is a matter of law. Stonewall Ins. Co., at 682. Where there are no relevant facts in dispute, the applicable standard of review is de novo review of lower court decisions regarding insurance coverage. See Stonewall Ins. Co., at 682.

[4] The McDonalds' homeowners' insurance policy is typical of most such policies. It insures against all "accidental direct physical loss . . . except as provided". State Farm Homeowners' Policy, Section 1 Losses Insured; Clerk's Papers, at 9. In structural terms, one section of the policy describes the losses insured; another describes the losses not insured. 11


11 As one commentator has described "all risk" homeowners' insurance, it is "a promise to pay upon the fortuitous and extraneous happening of loss or damage . . . from any cause whatsoever, . . . except when occasioned by the wilful or fraudulent act or acts of the insured." 2 W. Freedman, Richards on Insurance 212 (5th ed. 1952), cited in Hecker & Goode, Wear and Tear, Inherent Vice, Deterioration, etc.: The Multi-Faceted All-Risk Exclusions, 21 Tort & Ins. L.J. 634 (1985-1986). Structurally, the policy is the same as earlier "all risk" policies: there is a general grant of coverage which in turn is narrowed by specific and detailed exclusions.


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 coverage, the insurer must then show the loss is excluded by specific policy language. There is no question in this case that the McDonalds' losses are "accidental direct physical loss[es]".

[5] The efficient proximate cause rule states that where a peril specifically insured against sets other causes into motion which, in an unbroken sequence, produce the result for which recovery is sought, the loss is covered, even though other events within the chain of causation are excluded from coverage. Graham v. Public Employees Mut. Ins. Co., 98 Wn.2d 533, 538, 656 P.2d 1077 (1983). "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." (Citation omitted.) Villella v. Public Employees Mut. Ins. Co., 106 Wn.2d 806, 815, 725 P.2d 957 (1986). The rule was later reaffirmed in Safeco Ins. Co. of Am. v. Hirschmann, 112 Wn.2d 621, 773 P.2d 413 (1989).

Initially, State Farm requests this court to discard the efficient proximate cause rule. We decline to do so and reaffirm our commitment to the rule and our decisions applying it.

By its own terms, the efficient proximate cause rule operates when an "insured risk" or covered peril sets into motion a chain of causation which leads to an uncovered loss. Hirschmann, at 628. If the efficient proximate cause of the final loss is a covered peril, then the loss is covered under the policy. In chain of causation cases, the efficient proximate cause rule is properly applied after (1) a determination of which single act or event is the efficient proximate cause of the loss and (2) a determination that the efficient proximate cause of the loss is a covered peril.

[6] The determination whether certain acts are the proximate cause of injury or loss is a question of fact. Graham, at 539; see Hirschmann, at 631. See also Morris v. McNicol, 83 Wn.2d 491, 519 P.2d 7 (1974) (property damage caused by alleged negligence is a question of fact). In this case, State Farm does not dispute the McDonalds' assertion that the efficient proximate cause of their loss is the faulty construction of the filled areas using improper and defective fill materials.

Resolution of the coverage dispute in this case thus turns on the application of the policy exclusions to the efficient proximate cause of the property loss suffered by the Mc-Donalds. The McDonalds argue that the undisputed proximate cause of the property damage the faulty construction of the filled areas using improper and defective fill materials is a covered peril under their homeowners' policy. They claim State Farm's policy language does not exclude losses caused by defective construction and materials. The McDonalds read the language of the policy exclusion for defective construction and materials to exclude only loss consisting of the specified events or actions. They argue that only loss which is made up or composed of faulty construction or defective material is excluded. Because the exclusion says nothing about loss caused by third party negligence, faulty construction, or defective materials, they claim such loss is not excluded by specific policy language and thus is covered by the policy.

[7, 8] The focal question is whether the exclusionary language of the policy is ambiguous. This question requires us to interpret the policy's exclusionary language and provisions. "'Interpretation of a promise or agreement or a term thereof is the ascertainment of its meaning.'" Berg v. Hudesman, 115 Wn.2d 657, 663, 801 P.2d 222 (1990) (quoting Restatement (Second) of Contracts 200 (1981)). Insurance policy language must be interpreted in accord with the way it would be understood by the average person. National Union Fire Ins. Co. v. Zuver, 110 Wn.2d 207, 210, 750 P.2d 1247 (1988). An insurance policy provision is ambiguous when it is fairly susceptible to two different interpretations, both of which are reasonable. Stanley v. Safeco Ins. Co. of Am., 109 Wn.2d 738, 741, 747 P.2d 1091 (1988). If exclusionary language is ambiguous, it is proper to construe the effect of such language against the drafter. National Union Fire Ins. Co., at 210. See also Berg v. Hudesman, at 677 (it is proper to construe the legal effect of an ambiguous contract provision against the drafter). Thus, if an insurance policy's exclusionary language is ambiguous, the legal effect of such ambiguity is to find the exclusionary language ineffective. For the reasons outlined below, we find no ambiguity in the policy's exclusionary language.

[9] The McDonalds' reading of exclusion 3 overlooks the language contained in exclusion 4. In exclusion 4, the policy states there is no coverage for earth movement or foundation cracking where negligent construction or defective materials "directly or indirectly cause" the loss. 12


12 Exclusion 4 states:

We do not insure for loss described in paragraphs 1. and 2. immediately above regardless of whether one or more of the items listed in paragraph 3. above:

a. directly or indirectly cause, contribute to or aggravate the loss; or

b. occur before, at the same time, or after the loss or any other cause of the loss.

State Farm Homeowners' Policy, Section 1 Losses Not Insured; Clerk's Papers, at 12. Paragraph 1. contains the foundation cracking exclusion and paragraph 2. contains the earth movement exclusion. State Farm Homeowners' Policy, Section 1 Losses Not Insured; Clerk's Papers, at 11-12.


Exclusion 4 meets the McDonalds' argument. The policy excludes coverage for earth movement and foundation cracking directly or indirectly caused by negligent acts, defective construction or defective materials. An agreement should be interpreted in a way that gives effect to each provision. Restatement (Second) of Contracts 203(a) (1981). The McDonalds' reading of exclusion 3 disregards an important provision of the policy and is thus unreasonable.

[10-12] The Court of Appeals interpreted the ensuing loss clause of the defective construction and materials exclusion as a grant of coverage for faulty or negligent construction or repairs. The meaning ascribed to the ensuing loss clause is based on an improper interpretation of this clause. The clause appears in the exclusions section of the policy. Because the structure of an all-risk homeowners' insurance policy consists of a grant of coverage counterbalanced by coverage exclusions, an interpretation of provisions contained in such a policy must acknowledge this structure, which is an important objective source of meaning and intent. Given the placement of the ensuing loss clause in a policy exclusion, it is difficult to reasonably interpret the ensuing loss clause contained in the defective construction and materials exclusion to be a grant of coverage.

The ensuing loss clause may be confusing, but it is not ambiguous. Reasonably interpreted, the ensuing loss clause says that if one of the specified uncovered events takes place, any ensuing loss which is otherwise covered by the policy will remain covered. The uncovered event itself, however, is never covered. In reviewing the identical ensuing loss clause, the California Court of Appeal explained the intent of the ensuing loss clause is not to enlarge the list of items covered under the policy. Brodkin v. State Farm Fire & Cas. Co., 217 Cal. App. 3d 210, 218, 265 Cal. Rptr. 710, 714 (1989), review denied (1990). We agree.

Moreover, it is difficult to reasonably interpret the policy exclusion for faulty construction and defective materials (exclusion 3) as ambiguous. Reasonably interpreted, exclusion 3 excludes coverage for loss caused by faulty construction and defective materials unless a covered loss otherwise results. See Brodkin v. State Farm Fire & Cas. Co., at 218. See also Waldsmith v. State Farm Fire & Cas. Co., 232 Cal. App. 3d 693, 283 Cal. Rptr. 607 (1991) (interpreting same policy language, loss caused by negligent maintenance of water main off the premises excluded by policy); Murray v. State Farm Fire & Cas. Co., 219 Cal. App. 3d 58, 64 n.2, 268 Cal. Rptr. 33, 36 (1990) (interpreting same policy language, faulty workmanship excluded by policy). A homeowners' insurance policy with an exclusion of the kind before us should not be interpreted as extending a warranty of fitness to materials used in construction or repair or as an extending coverage to property loss arising from the negligence of third parties.

Inasmuch as no reasonable reading of the policy indicates that the efficient proximate cause of the property losses was a covered peril, the Court of Appeals incorrectly determined that the efficient proximate cause rule applied here. Only if the peril of negligent construction or repair is a covered peril does the efficient proximate cause rule come into play. This is the effect of the statement in Safeco Ins. Co. of Am. v. Hirschmann, 112 Wn.2d 621, 773 P.2d 413 (1989) that "[i]f the initial event, the 'efficient proximate cause,' is a covered peril, then there is coverage under the policy regardless whether subsequent events within the chain, which may be causes-in-fact of the loss, are excluded by the policy." Hirschmann, at 628.

The trial court properly determined that the "ensuing losses" of foundation cracking and earth movement were not covered perils. With respect to foundation cracking, the State Farm policy does not provide coverage for foundation cracking. Exclusion 1 is unambiguous. It states there is no coverage "for loss . . . consisting of . . . cracking . . . of . . . [the] foundation."

Earth movement caused by faulty construction or defective materials also is not a covered peril. The language contained in exclusion 4 meets the argument that the policy only excludes earth movement losses caused by natural, but not manmade, events. 13


13 The policy defines earth movement loss as

"[A]ny loss caused by, resulting from, contributed to or aggravated by earthquake; landslide; mudflow; sinkhole; erosion; the sinking, rising, shifting, expanding or contracting of the earth." State Farm Homeowners' Policy, Section 1 Losses Not Insured; Clerk's Papers, at 12.


Some courts have interpreted the policy's earth movement definition to exclude only earth movement caused by natural events. See, e.g., Mattis v. State Farm Fire & Cas. Co., 118 Ill. App. 3d 612, 454 N.E.2d 1156, 41 A.L.R.4th 1082 (1983) (applying the ejusdem generis rule to an earth movement exclusion). However, application of the ejusdem generis rule is inappropriate here. The language contained in exclusion 4 addresses earth movement and foundation cracking caused by manmade events of faulty construction and use of defective materials. Exclusion 4 indicates that property loss consisting of earth movement and foundation cracking "directly or indirectly cause[d], contribute[d] to or aggravate[d]" by faulty construction or defective materials is excluded. Moreover, there is no indication that the insurance policy at issue in Mattis (or the cases cited therein) contained language similar to that of exclusion 4. Thus, the reasoning of the Mattis court is not especially helpful or persuasive on this point.

To summarize, the exclusions that address the perils of defective construction and materials, foundation cracking, and earth movement are not ambiguous. On the basis of the facts presented, the State Farm homeowners' policy does not cover loss caused by defective construction or materials and the ensuing losses of foundation cracking and earth movement. 14


14 Nevertheless, the McDonalds contend that the policy's exclusion of earth movement loss is ambiguous due to language contained in the "Additional Coverages" section extending coverage to debris removal and for reasonable repairs. However, this argument fails because such coverage is expressly conditioned on the damage having been caused by a covered peril. The condition for additional coverage not being met, there is no additional coverage for the specified losses. The McDonalds' interpretation of the "Additional Coverages" of debris removal and reasonable repairs is unreasonable. There is no ambiguity with respect to the policy's exclusion of earth movement loss.


III

[13] The final issue concerns the trial court's denial of the McDonalds' motion to amend their complaint. The standard of review for a request to amend a pleading is a manifest abuse of discretion. Herron v. Tribune Pub'g Co., 108 Wn.2d 162, 736 P.2d 249 (1987).

The State Farm policy contains a condition requiring any "action" to be brought "within one year after the occurrence causing loss or damage." State Farm Homeowners' Policy, Section 1 Conditions; Clerk's Papers, at 14. The motion to amend the complaint was filed on February 16, 1989, over 3 years after the January 1986 damage occurred. Insurance companies are permitted by statute to limit the insured's right of action against the insurer:

In contracts of property insurance . . . such limitation shall not be to a period of less than one year from the date of the loss.

RCW 48.18.200. These 1-year limitation provisions have been enforced. See, e.g., Logan v. North-West Ins. Co., 45 Wn. App. 95, 98, 724 P.2d 1059 (1986).

[14, 15] A motion to amend can be denied in the face of prejudice to the nonmoving party. Del Guzzi Constr. Co. v. Global Northwest Ltd., 105 Wn.2d 878, 888, 719 P.2d 120 (1986) (prejudice to the nonmoving party is the "touchstone" for denying a motion to amend). Because the policy's right of action limitation bars the McDonalds from recovering these damages from State Farm, permitting the McDonalds to continue to sue State Farm is prejudicial to State Farm. The policy is not a proper basis for recovery against State Farm. Accordingly, it was not an abuse of the trial court's discretion to deny the McDonalds' motion to amend their complaint.

DORE, C.J., and BRACHTENBACH, DOLLIVER, ANDERSEN, SMITH, GUY, and JOHNSON, JJ., concur.