Some Californians have faith that El Niño will bring about major storms later this year. While I am a skeptic, many homeowners being proactive by electing to repair or replace their existing roofs in advance of El Niñoshould do so before any serious rain.

When roofing work is performed, tarps or plastic sheeting are commonly used to cover exposed portions of the roof, albeit temporarily. Well, what happens if, during a rain storm, the plastic sheeting blows open allowing rain to enter the property? Is there coverage for the resulting interior damage? This was addressed by the court in Diep v. California Fair Plan Association.1 In Diep, the insurance policy provided in relevant part:

Company shall not be liable for loss to the interior of the building(s) or the property covered therein caused: (1) by rain, snow, sand or dust, whether driven by wind or not, unless the building(s) covered or containing the property covered shall first sustain an actual damage to roof or walls by the direct action of wind or hail and then shall be liable for loss to the interior of the building(s) or the property covered therein as may be caused by rain, snow, sand or dust entering the building(s) through openings in the roofs or walls made by direct action of wind or hail.

The above language is commonplace in practically all property policies which provides coverage for interior property damage and contents only if wind or hail first creates openings allowing rain (in the case of a rain storm) to intrude into the property. In other words, it is not sufficient for rain to find its way into the property without the prerequisite damage to the roof or walls.

The court in Diep held that if the tarp or plastic sheeting constituted a roof, then there would be coverage if the wind blew the sheeting open allowing rain to enter. However, after working through some dictionary definitions of "roof," the court deemed that plastic sheeting was only a nonstructural "band-aid" and therefore could not be construed as a roof since a roof is considered a "permanent part of the structure it covers." Important to the court's analysis was that the breach of the roof was not caused by wind or hail, but by workers who removed the portion of the roof needing the repair prior to placing the plastic sheeting to the open areas.2 Hence, the court found that plastic sheeting does not constitute a roof and thus, there was no covered occurrence.

It is important to note that courts in states other than California have ruled whether a tarp can be construed as a roof. The majority of those courts that have dealt with the issue have held that tarps do not constitute roofs. If you are a policyholder uncertain as to your own claim or case, consult with an insurance professional. As is often the case, there is no uniformity among the states on any given issue.