Filed 1/11/02

----

JOSEPH PARMAN et al.,

Plaintiffs and Appellants,

v.

AMERICAN NATIONAL FIRE INSURANCE

COMPANY,

Defendant and Appellant.

C034737

(Super. Ct. No. C98-008)

On January 1, 1997, a mass of debris consisting of

boulders, trees, and other organic and inorganic material rushed

down Powley Creek Canyon, burying everything in its path and

destroying ranch buildings and equipment on a large ranch owned

by plaintiffs Joseph and Betty Parman. The Parman ranch was

insured under an Agripak farm and ranch policy issued by

defendant American National Fire Insurance Company (American

National). According to the undisputed declaration of the

Parmans’ expert, the phenomenon that laid waste to the Parman

ranch is called a debris torrent. We must decide whether the

debris torrent that destroyed the ranch falls within an

2

exclusion in the Parmans’ policy for damages from earth

movement. While the trial court concluded that it did not, we

disagree and shall reverse summary judgment in the Parmans’

favor.

Joseph and Betty Parman owned a large ranch located in the

area of Powley Creek Canyon near Lake City, California. The

Parman ranch was insured by an Agripak farm and ranch policy.

The policy generally provided coverage “for direct physical loss

of or damage” resulting from specified causes but also set forth

various exclusions, two of which are central to this appeal.

The policy stipulated, “We will not pay for loss or damage

caused directly or indirectly by any of the following. Such

loss or damage is excluded regardless of any other cause or

event that contributes concurrently or in any sequence to the

loss. [¶] . . . [¶]

“2. Earth Movement

“a. Any earth movement (other than sink-hole

collapse), such as earthquake, landslide, mine subsidence or

earth sinking, rising or shifting. [¶] . . . [¶]

“8. Water

“a. flood, surface water, waves, tides, tidal waves,

overflow of any body of water, or their spray, all whether

driven by wind or not;

“b. mudslide or mudflow; [¶] . . . [¶]

“Except: [¶] . . . [¶]

“(2) if loss or damage to:

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“(i) farm machinery, vehicles and

equipment covered for the Special Causes of Loss; or

“(ii) ‘livestock’;

“is caused by water as described in 8.a.

above, this Water exclusion does not apply to such loss or

damage.”

On January 1, 1997, the Parman ranch was effectively

destroyed. Though the parties choose different words to

characterize the destructive events of that day, American

National’s description is largely undisputed.1 According to an

insurance adjuster hired by American National, “It appears that

on the date of loss, a rain-soaked portion of the Warner

Mountains gave way and slid down the entire canyon, completely

obliterating the Parman Ranch. There was no earthquake at that

time. The cause has been determined to be loose earth that gave

way when it became saturated from frequent heavy rains. That

particular area of the Warner Mountains is an extremely steep

grade. The unstable loose earth could not withstand the heavy

rains and broke away.”

American National denied coverage of the Parmans’ claim

based upon the earth movement and water exclusions. Thereupon,

the Parmans filed this action seeking recovery for breach of

1 Both parties assert there are no triable issues of fact. The

Parmans take issue with American National’s early

characterization of the event as flooding and earth movement,

but nowhere do they dispute the insurance adjuster’s conclusion

that the damage was caused when “a rain-soaked portion of the

Warner Mountains gave way and slid down the entire canyon.”

4

contract and asserting additional claims for breach of the duty

of good faith and fair dealing, and intentional

misrepresentation. The complaint seeks recovery of the policy

limits, consequential damages, punitive damages, and attorney

fees. American National answered, alleging as a fourth

affirmative defense that the damage suffered by the Parmans was

“caused by excluded perils.” Thereafter, the Parmans moved for

summary adjudication of the fourth affirmative defense, and

American National moved for summary judgment or, in the

alternative, summary adjudication of the individual causes of

action.

The Parmans’ motion for summary adjudication was based on

the declaration of geologist Kim deRubertis. According to

Mr. deRubertis, “the event that took place on January 1, 1997

that destroyed the Parman[s’] property was a classical case of a

‘debris torrent . . . .’” Mr. deRubertis had studied numerous

locations where property was destroyed by a geological

phenomenon known as a “debris torrent,” including property in

Oregon where, in the case of Naumes, Inc. v. Landmark Insurance

Co. (1993) 119 Or.App. 79 [849 P.2d 554] (Naumes), he opined

that the insured’s property was destroyed by a debris torrent.

Relying on a scientific paper, Mr. deRubertis defined a

debris torrent as “‘a mass movement that involves water-charged,

predominantly coarse-grained inorganic and organic material

flowing rapidly down a steep, confined preexisting channel.’”

Such a torrent, according to Mr. deRubertis, is distinct from

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water floods, mudslides, mudflows, and even landslides.2 A key

difference is the transport mechanism. “‘Once a debris torrent

begins, the water-saturated front of the flow forms a moving

“plug.” During transportation, because of the concentration

difference between the “plug” and the creek bed material

underneath, further instability in the creek bed occurs and the

flow becomes self-propagating and more erosive as it moves

downstream.’”

The trial court accepted the geologist’s distinctions and

granted the Parmans’ motion on the following grounds: “The

Court is convinced that the so-called ‘debris torrent’ is a

discrete, separate phenomenon from the excluded perils cited by

[American National] under the policy and that the excluded

perils set forth in [American National’s] Fourth Affirmative

Defense as a matter of law do not apply to exclude coverage in

this case. The Court does not believe the parties are just

quibbling over names. The ‘debris torrent’ is explosive and

becomes self propagating. From a layman’s point of view, which

is the proper perspective to place on this issue, this

phenomenon poses a separate and distinct hazard from those

excluded under the insurance contract.”

2 On appeal, American National belatedly attempts to counter the

deRubertis declaration with a government document describing a

debris flow. It requests this court to take judicial notice of

the document. Having failed to present the document to the

trial court, American National’s request must be denied.

(People v. Amador (2000) 24 Cal.4th 387, 394; Coy v. County of

Los Angeles (1991) 235 Cal.App.3d 1077, 1083, fn. 3.)

6

The court later elaborated as follows: “The reason the

Court granted [the Parmans’] Motion for Summary Adjudication as

to coverage pertaining to [American National’s] Fourth

Affirmative Defense is that the excluded perils under the

applicable insurance contract of mudslide, mudflow, earth

movement, flood, and landslide are distinct from a debris

torrent. In reviewing the photographs . . . the buildings and

fields are a substantial distance from the bottom of the

mountain. Because of this distance, one would think that the

buildings are safe from mudslide, mudflow, earth movement and

landslide. A debris torrent, however, behaves differently

because it carries its own propellants. A debris torrent is

not, therefore, an excluded peril under the subject policy.”

The court denied American National’s motion for summary

judgment but granted summary adjudication of the claims for

tortious bad faith, intentional misrepresentation, and punitive

damages. The Parmans unsuccessfully sought leave to file an

amended complaint, adding an additional cause of action for

tortious bad faith based on American National’s refusal to

settle after the court’s order granting summary adjudication.

Thereafter, the parties stipulated that damages remained the

only issue for determination. As to that issue, the court ruled

conduct by American National excused the Parmans’ compliance

with a “rebuilding clause” endorsement. The endorsement limits

recovery when an insured fails to repair or replace damaged

property within 12 months from the time the damage occurred.

7

With minor exceptions, the parties stipulated to the amount of

damages. The court awarded prejudgment interest.

Both the Parmans and American National have appealed.

American National asserts the court erred in granting the

Parmans’ motion for summary adjudication and in declining to

enforce the rebuilding clause and maintains it is entitled to

judgment as a matter of law. In their cross-appeal, the Parmans

challenge the orders granting summary adjudication in favor of

American National and denying their motion for leave to amend.

“‘A summary adjudication motion is subject to the same

rules and procedures as a summary judgment motion. Both are

reviewed de novo.’” (Lomes v. Hartford Financial Services

Group, Inc. (2001) 88 Cal.App.4th 127, 131.) Summary judgment

properly is granted if there is no question of fact and the

moving party is entitled to judgment as a matter of law. (Code

Civ. Proc., § 437c, subd. (c); Villa v. McFerren (1995)

35 Cal.App.4th 733, 741.) Summary judgment is a drastic

procedure and should be used with caution (Mann v. Cracchiolo

(1985) 38 Cal.3d 18, 35); the moving party’s papers are strictly

construed, while the opposing party’s papers are liberally

construed (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092,

1107). The moving party must demonstrate that under no

hypothesis is there a material factual issue requiring a trial

(Chevron U.S.A., Inc. v. Superior Court (1992) 4 Cal.App.4th

544, 548), whereupon the burden of proof shifts to the opposing

8

party to show, by responsive separate statement and admissible

evidence, that triable issues of fact exist (Lorenzen-Hughes v.

MacElhenny, Levy & Co. (1994) 24 Cal.App.4th 1684, 1688; Code

Civ. Proc., § 437c, subd. (o)).

However, “from commencement to conclusion, the party moving

for summary judgment bears the burden of persuasion that there

is no triable issue of material fact and that he is entitled to

a judgment as a matter of law. . . . There is a triable issue

of material fact if, and only if, the evidence would allow a

reasonable trier of fact to find the underlying fact in favor of

the party opposing the motion in accordance with the applicable

standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001)

25 Cal.4th 826, 845.) On appeal, this court exercises its

independent judgment in determining whether there are no triable

issues of material fact and the moving party thus is entitled to

judgment as a matter of law. (Union Bank v. Superior Court

(1995) 31 Cal.App.4th 573, 579; Torres v. Cool Carriers A.B.

(1994) 26 Cal.App.4th 900, 904; Sanchez v. Swinerton & Walberg

Co. (1996) 47 Cal.App.4th 1461, 1466.)

The interpretation of a policy of insurance, the principal

task presented to us by this appeal, is a question of law which

we resolve de novo. (Waller v. Truck Ins. Exchange, Inc. (1995)

11 Cal.4th 1, 18.) It apparently is not disputed that the

Parmans’ claim falls within the scope of the basic coverage of

the policy issued by American National. To prevail on summary

judgment, therefore, American National had to demonstrate the

9

claim falls within an exclusion (Golden Security Thrift & Loan

Assn. v. First American Title Ins. Co. (1997) 53 Cal.App.4th

250, 255), which brings us to the central issue presented by

this appeal -- whether the event that destroyed the ranch was

one of the excluded perils. The excluded perils are listed as

follows:

1. “[E]arth movement (other than sink-hole collapse), such

as earthquake, landslide, mine subsidence or earth sinking,

rising or shifting. . . .”

2. “[F]lood, surface water, waves, tides, tidal waves,

overflow of any body of water, or their spray, all whether

driven by wind or not[.]”

3. “[M]udslide or mudflow . . . .”

Our task, therefore, is to divine the meaning of the terms

of exclusion and apply the terms as construed to the events that

destroyed the Parmans’ ranch. We are aided in that task by

rules on the interpretation of insurance contracts. “‘While

insurance contracts have special features, they are still

contracts to which the ordinary rules of contractual

interpretation apply.’” (La Jolla Beach & Tennis Club, Inc. v.

Industrial Indemnity Co. (1994) 9 Cal.4th 27, 37, quoting Bank

of the West v. Superior Court (1992) 2 Cal.4th 1254, 1264 (Bank

of the West).) The basic rules are familiar. (Bank of the

West, supra, 2 Cal.4th at p. 1264; Buss v. Superior Court (1997)

16 Cal.4th 35, 45; AIU Ins. Co. v. Superior Court (1990)

51 Cal.3d 807, 821-822 (AIU).) The objective is to ascertain

the mutual intentions of the contracting parties at the time

10

they executed the contract (Civ. Code, § 1636; Foster-Gardner,

Inc. v. National Union Fire Ins. Co. (1998) 18 Cal.4th 857, 868

(Foster-Gardner); Montrose Chemical Corp. v. Admiral Ins. Co.

(1995) 10 Cal.4th 645, 666; Maryland Casualty Co. v. Nationwide

Ins. Co. (1998) 65 Cal.App.4th 21, 28), recognizing, of course,

that sometimes, as in this case, the parties never contemplated

the character or magnitude of the event that triggers coverage.

“‘Such intent is to be inferred, if possible, solely from

the written provisions of the contract.’ (AIU, supra, 51 Cal.3d

at p. 822.)” (Foster-Gardner, supra, 18 Cal.4th at p. 868.)

“The ‘clear and explicit’ meaning of these provisions,

interpreted in their ‘ordinary and popular sense,’ unless ‘used

by the parties in a technical sense or a special meaning is

given to them by usage’ [citation], controls judicial

interpretation. [Citation.]” (AIU, supra, 51 Cal.3d at

p. 822.) Expert testimony “cannot be used to provide legal

meaning or interpret the policies as written. . . . [W]e view

the experts’ testimony . . . as only relevant for the historical

facts that they observed and not for their legal conclusions as

to what conditions were covered or excluded under the terms of

the policy.” (McHugh v. United Service Automobile Ass’n. (9th

Cir. 1999) 164 F.3d 451, 454; Cooper Companies v.

Transcontinental Ins. Co. (1995) 31 Cal.App.4th 1094; Pieper v.

Commercial Underwriters Ins. Co. (1997) 59 Cal.App.4th 1008,

1016-1017 (Pieper).)

“Thus, if the meaning a layperson would ascribe to contract

language is not ambiguous, we apply that meaning. (See, e.g.,

11

Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 807

[180 Cal.Rptr. 628, 640 P.2d 764]; Crane v. State Farm Fire &

Cas. Co. (1971) 5 Cal.3d 112, 115 [95 Cal.Rptr. 513, 485 P.2d

1129, 48 A.L.R.3d 1089].) [¶] If there is ambiguity, however,

it is resolved by interpreting the ambiguous provisions in the

sense the promisor (i.e., the insurer) believed the promisee

understood them at the time of formation. (Civ. Code, § 1649.)”

(AIU, supra, 51 Cal.3d at p. 822; see also Foster-Gardner,

supra, 18 Cal.4th at p. 868.) Ambiguities remaining after

application of this rule are resolved in favor of coverage.

(AIU, supra, 51 Cal.3d at p. 822.)

“‘An insurance policy provision is ambiguous when it is

capable of two or more constructions both of which are

reasonable.’” (Bay Cities Paving & Grading, Inc. v. Lawyers’

Mutual Ins. Co. (1993) 5 Cal.4th 854, 867 (Bay Cities Paving).)

In California, the existence of an ambiguity in an insurance

contract is a question of law. (Pieper, supra, 59 Cal.App.4th

at p. 1016.) The policy need not define every term to avoid

ambiguity (Bay Cities Paving, supra, 5 Cal.4th at p. 866), and

we are free to consult dictionaries for the usual meaning of

words (In re Marriage of Bonds (2000) 24 Cal.4th 1, 16).

However, ambiguity is not an abstract proposition. (California

Casualty Ins. Co. v. Northland Ins. Co. (1996) 48 Cal.App.4th

1682, 1694 (California Casualty).) “The proper question is

whether the word is ambiguous in the context of this policy and

the circumstances of this case. [Citation.] ‘The provision

will shift between clarity and ambiguity with changes in the

12

event at hand.’ [Citation.]” (Bay Cities Paving, supra,

5 Cal.4th at p. 868.) Although a policy provision is ambiguous

in some factual contexts, it may not be in others. (California

Casualty, supra, 48 Cal.App.4th at p. 1694; Aloha Pacific,

Inc. v. California Ins. Guarantee Assn. (2000) 79 Cal.App.4th

297, 316.)

With these principles in mind, we consider the pertinent

language of the contract before us, directing our focus to the

language that excludes coverage for “earth movement.”3 Our task

is simple to describe though difficult to perform: We must

determine the meaning a layperson would assign to “earth

movement” in the context of the policy at issue and in light of

the circumstances of the case. We take judicial notice of

various dictionary definitions as the best test of plain

meaning, i.e., “[t]he true signification” of the word. (Evid.

Code, § 451, subd. (e).) According to Webster’s Third New

International Dictionary (1981) at page 1480, the word

“movement” means “the action or process of moving.” The term

3 The policy also contains a water exclusion that, unlike the

earth movement exclusion, permits partial recovery for certain

items of damage if the loss resulted from water, including

mudslide or mudflow. If the damage resulted from a combination

of water and earth movement, a causation issue might be

presented. However, at oral argument, counsel for both parties

agreed that the facts do not support application of the water

exclusion. Thus, the only issue presented for resolution is

whether the phenomenon denominated a “debris torrent” by the

Parmans is a form of earth movement within the policy exclusion.

If so, American National is entitled to judgment as a matter of

law.

13

“moving,” in turn, means simply “causes or produces or carries

on motion.” (Ibid.) “Earth” is, of course, “the fragmental

material composing part of the surface of the globe: soil,

ground.” (Id. at p. 714.) Read literally and in isolation, the

policy exclusion covers the damages here at issue, which

resulted from the movement of earth down the side of a mountain

onto buildings and equipment owned by the Parmans.4 We are

obliged, however, to also consider the language of exclusion in

the context of the policy as a whole. Standing alone, the term

“earth movement” is broad enough to include the injury suffered

by the Parmans. However, the term does not stand alone but is

part of a clause that reads: “Any earth movement (other than

sink-hole collapse), such as earthquake, landslide, mine

subsidence or earth sinking, rising or shifting. . . .” Two

principles of contract interpretation thus come into play. The

doctrine of noscitur a sociis holds that “‘“the meaning of a

word may be enlarged or restrained by reference to the object of

the whole clause in which it is used.”’” (Dyna-Med, Inc. v.

Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1391,

fn. 14.) Closely related is the doctrine of ejusdem generis --

general words are to be held as applying only to persons or

4 Neither party has suggested the term applies to all damage

regardless of origin so long as movement of the earth is

involved. Again, however, we are not obliged to abstractly

ponder all the possible claims that could be asserted under the

policy. The question is whether the term can be plausibly

construed to both include and exclude the particular casualty

claim asserted by the Parmans.

14

things of the same general kind or class as those specifically

mentioned. (Id. at p. 1391, fn. 12; Coors Brewing Co. v. Stroh

(2001) 86 Cal.App.4th 768, 778.) Here, the general term “earth

movement” must be read to refer to events similar in nature to

the others listed. The most apparent similarity is to

landslides.5

We are thus required to ascribe meanings to other terms of

exclusion. Again, there is no indication that any of the terms

of exclusion were “‘used by the parties in a technical sense or

a special meaning is given to them by usage.’” (AIU, supra,

51 Cal.3d at p. 822.) Accordingly, we read them in their

ordinary sense. “Landslide” is “the rapid downward movement

under the influence of gravity of a mass of rock, earth, or

artificial fill on a slope.” (Webster’s 3d New Internat. Dict.,

supra, at p. 1269.) In common parlance, a landslide would

describe what occurred in the present case: the sliding of “a

rain-soaked portion of the Warner Mountains” down a canyon onto

the Parman ranch. The Parmans insist that what occurred was not

a landslide but, in so doing, rely not on the ordinary meaning

of the term but on a scientific definition that, according to

5 Though known to legal scholars under their Latin names,

ejusdem generis and noscitur a sociis, the doctrines reflect

common sense notions of how language in statutes and contracts

should be read. “‘One hardly need rely on such Latin

phrases . . . to reach this obvious conclusion.’” (Third

National Bank v. Impac Limited, Inc. (1977) 432 U.S. 312, 322,

fn. 16 [53 L.Ed.2d 368, 376], quoting United States v. Feola

(1975) 420 U.S. 671, 708 [43 L.Ed.2d 541, 566, 95 S.Ct. 1255]

(dis. opn. of Stewart, J.).)

15

the Parmans’ expert, deRubertis, more precisely describes the

event that destroyed the Parmans’ property.

The deRubertis definition of debris flow is extracted from

a scientific paper attached to his declaration. (D. F. Van

Dine, presented to 37th Canadian Geotechnical Conference (Sept.

1984) Debris Flows and Debris Torrents in the Southern Canadian

Cordillera, p. 1.) The paper notes that debris torrents are

referred to by various names, including “‘alpine mud flows’” and

states that “[d]ebris torrents have only relatively recently

been distinguished from water floods, mudslides, mudflows, and

even landslides.” (Id. at p. 2.) A chart lists the

distinguishing features of these different geologic phenomena.

Four characteristics are compared: materials involved,

mechanics of movement, where movement occurs, and water content.

(Ibid.)

The only distinction identified between a mudflow and a

debris flow is the texture of the materials involved. Debris

flows (including debris torrents) are predominately coarse

grained, inorganic and organic material, while mudflows are fine

grained, inorganic material.6 (D. F. Van Dine, supra, at p. 2.)

Two features distinguish a debris flow from a slide or

avalanche: water content and the mechanics of movement. The

water content of the earth in a debris flow is saturated, while

6 The paper also notes that mudflow occurs within a channelized

preexisting drainage course. A debris flow occurring within a

channelized preexisting drainage course is called a “debris

torrent.” (D. F. Van Dine, supra, at p. 2.)

16

it is unsaturated in a slide or avalanche. The term “flow” is

used to describe the movement of debris flows, while the term

“translation” is applied to slides and avalanches. (Ibid.)

According to deRobertis, in a debris torrent, “‘the watersaturated

front of the flow forms a moving “plug” and the flow

becomes self-propagating . . . .’”

Were this a debate on scientific principle, the Parmans

might prevail, but it is not. There is no reason to suspect

that the policy exclusion for “earth movement . . . such

as . . . landslide” was not intended to include “the rapid

downward movement under the influence of gravity of a mass of

rock [and] earth” that occurred in this case. The mechanics of

transport and the degree of water saturation may have scientific

significance, but the policy herein attaches no special

significance to such distinctions except insofar as earth

movement is distinguished from mudslide or mudflow.7 The Parmans

assert that a landslide consists of a dry sliding of earth and

thus the term cannot include a debris torrent. However, the

ordinary definition of landslide does not exclude wet movements

of rock and earth. We note the scientific paper relied on by

the Parmans’ expert, in distinguishing debris torrents from

slides and avalanches, indicates that a debris slide, though

unsaturated, is wet, in contrast to an avalanche, which is dry.

7 The Parmans offered no evidence the term “debris torrent” was

ever discussed in connection with the insurance policy or that

either party was even aware of the term’s existence.

17

(D. F. Van Dine, supra, at p. 2.) More importantly, in ordinary

parlance, a rapid downhill movement of rock and earth, whether

dry or wet, is a landslide.

The Parmans offer two examples of comparable exclusions

that failed. In Peach State Uniform Service, Inc. v. American

Ins. Co. (5th Cir. 1975) 507 F.2d 996 (Peach State), part of the

foundation of a building gave way and part of the building

collapsed after heavy rains. The insurer argued the loss came

within an exclusion in the all-risk policy coverage regarding

losses resulting from certain earth movement or certain water

damage.

The actual policy provisions are similar to the exclusions

in the policy before us. The insurance contract stated: “This

policy does not insure against loss or damage resulting from:

[¶] . . . [¶] (B) Earthquake, volcanic eruption, landslide or

other earth movement (This exclusion does not apply to property

in transit); [¶] . . . [¶] (N) Water damage caused by,

contributed to, or aggravated by any of the following: [¶]

(1) Flood, surface water, waves, tidal water or tidal wave,

overflow of streams or other bodies of water, or spray from any

of the foregoing . . . .” (Peach State, supra, 507 F.2d at

pp. 997-998, fn. 1.)

A jury found for the insurer. The Fifth Circuit reversed

the judgment, concluding that as a matter of law the insured’s

loss came within neither policy exclusion. “While the term

water damage may be used in the abstract to refer to any sort of

damage worked by water or the motion of water, . . . here we

18

must take the phrase in context, not in the abstract.” (Peach

State, supra, 507 F.2d at p. 998.) In doing so, the court found

the exclusion was ambiguous, and therefore, it was compelled to

resolve such ambiguity against the insurer. Similarly, the

court found the earth movement phrase ambiguous “in its usage

and application here . . . .” (Peach State, supra, 507 F.2d at

p. 999.) The court then applied the principle of ejusdem

generis to facilitate construction of the exclusion, that is,

“‘[w]here general words are followed by a description of

specified subjects, the meaning of the general words ordinarily

will be presumed to be limited to the enumerated special

subjects, and to include only those things of the same nature as

those specially enumerated, unless a clear manifestation of a

contrary intent appears.’ [Citations.]” (Ibid.) The court

explained: “There is no clear manifestation here of an intent

not to limit the general term other earth movement in this

policy to events of the same nature as earthquakes, volcanoes,

and landslides. [Fn. omitted.] Taking the phrase in its

contractual context, then, and continuing to resolve ambiguity

in favor of the insured, we read other earth movement as

referring only to phenomena related to forces operating within

the earth itself, and not to the merely superficial effects of

external forces, such as erosion by run-off rainwater.” (Id. at

pp. 999-1000.) Since there was no evidence that the insured’s

loss resulted from earth movement properly construed, the court

concluded that the insured was entitled to coverage as a matter

of law. (Id. at p. 1000.)

19

While the policy exclusions in our case and Peach State are

similar, the facts are not. Unlike Peach State, the damagecausing

event in the present case is one of the examples of

“earth movement” enumerated in the policy exclusion. One may

reasonably question whether the rain-related collapse of a

building foundation is akin to “Earthquake, volcanic eruption,

landslide or other earth movement.” It is not plausible to

assert that an event commonly referred to as a landslide is not

“earth movement . . . such as . . . landslide” because a

scientist would affix a different label to it.

Naumes, supra, 119 Or.App. 79 actually involves a debris

torrent. The insureds point out that Mr. deRubertis submitted

an affidavit that the immediate cause of the insured’s property

damage was rock, mud, soil, and debris. He declared: “‘[I]t is

my opinion that the event fits the definition . . . of a “debris

torrent” which is an event distinct from flooding or the work of

surface water.’” (Id. at p. 83.) The Court of Appeal reversed

the summary judgment granted in favor of the insurer, finding

that the exclusions did not preclude coverage as a matter of

law.

While it is of some solace to find a reported case

describing the debris torrent, the Parmans overrate the value of

Naumes. It may be of interest that the geologic phenomenon

known as a debris torrent appeared in a published case in 1993,

thereby affording insurance companies the opportunity to clarify

the contractual language of exclusion. But the policy in Naumes

did not include an earth movement exclusion. The case was

20

reversed because the court found a triable issue of fact as to

whether water, as described in the exclusion, was the proximate

cause of the insured’s loss.

Neither Peach State nor Naumes advances the Parmans’ cause.

The language of the policy exclusion here at issue, when read in

context, is clear and applies to the destructive movement of

earth and debris that destroyed the Parman ranch. The alternate

construction proposed by the Parmans, resting as it does on a

technical analysis never discussed or contemplated by the

parties, is simply not plausible. The trial court thus erred in

granting summary adjudication on the fourth cause of action and

in denying American National’s cross-motion for summary

judgment. The error renders the ensuing judgment infirm.

Having determined that the judgment in the Parmans’ favor

must be reversed, their cross-appeal is thus rendered moot.

The judgment is reversed. On remand, the trial court shall

enter a new and different order granting American National’s

motion for summary judgment and shall enter judgment in favor of

defendant American National and against plaintiffs Joseph and

Betty Parman. American National shall recover costs on appeal.

RAYE , Acting P.J.

We concur:

MORRISON , J.

KOLKEY , J.