Dorcas Njenga v. Alberto Gonzales

1The Honorable Ronald L. Longstaff, Chief Judge, United States District Court
for the Southern District of Iowa.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-2202
___________
Walnut Grove Partners, L.P., and *
Urban Development Corp., *
*
Appellants, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
American Family Mutual *
Insurance Co., *
*
Appellee. *
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Submitted: November 17, 2006
Filed: March 16, 2007
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Before MURPHY, ARNOLD, and BENTON Circuit Judges.
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BENTON, Circuit Judge.
Walnut Grove Partners, L.P., and Urban Development Corp. (collectively
Walnut Grove) sued American Family Mutual Insurance Co., for a declaratory
judgment, claiming breach of contract, statutory bad faith, and breach of implied-in-
law duty of good faith. The district court 1 granted summary judgment to American

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Family. Walnut Grove appeals. Having jurisdiction under 12 U.S.C. § 1291, this
court affirms.
I.
Walnut Grove bought commercial liability insurance from American Family for
its property in West Des Moines. Walnut Grove leased space in the property to a
tenant, a law firm.
After multiple water infiltrations over several years, mold developed in the
leased space. In January 2002, the tenant wrote Walnut Grove about mold and
employee illness. Walnut Grove asserts this was a negotiation technique or request
for rent abatement, and took no action about the mold. In May, the tenant hired a
mold specialist and notified Walnut Grove: "In view of the new mold found in the
stairway area to the main level, the preliminary [mold] test results ..., and the
continuing health problems our personnel have been experiencing, we are giving you
notice of our right to cancel and terminate the lease." The tenant also stated that tests
showed levels of toxic mold 60 percent greater than outside air, but if acceptable mold
remediation occurred, the tenant might continue the lease. Walnut Grove told
American Family about the mold. In June, the tenant began extensive remediation.
In July, after a 60-day notice period, the tenant informed Walnut Grove that the
premises were untenantable, and terminated the lease. In August, Walnut Grove made
its first claim of loss to American Family.
In October 2002, the tenant sued Walnut Grove in Iowa state court, seeking a
declaratory judgment. Later, the petition was amended to include money damages in
declaratory judgment, breach of contract, unjust enrichment, and breach of covenant
of good faith and fair dealing. Walnut Grove requested American Family meet its
duties of defense and indemnity. American Family concluded that the claims were not
covered by the policy, and that it had no duty to defend.

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After a bench trial, judgment was entered against Walnut Grove. The trial court
determined that the tenant had expressed concerns about mold growth as early as
August 21, 2001, and that Walnut Grove failed to identify and remediate mold in the
leased space, even after observing it in October 2001. Lamarca & Landry, P.C. v.
Walnut Grove Partners, L.P., No. CL 90992 (Iowa D. Ct. Polk County September 3,
2003). The state court found that when Walnut Grove
became aware in the fall of 2001 that there was mold in the conference
room, it had an obligation to do more than replace carpet and furnace
filters. It had an obligation to be certain that all of the necessary repair
work was done. That necessarily included investigating the existence of
mold behind the walls.
The court also stated that by January 2002, the leased space was untenantable
"because by that time not only was the mold growth visible under the carpet in the
conference room but the health impact of the mold had begun to manifest itself in the
employees." Id.
Walnut Grove appealed. While the appeal was pending, Walnut Grove and the
tenant settled.
In the present case, Walnut Grove asserts that American Family, by the policy,
had a duty to defend and indemnify the state suit brought by the tenant. Both Walnut
Grove and American Family moved for summary judgment. The district court granted
partial summary judgment to American Family, finding the policy's impaired-property
exclusion applied. After further discovery, American Family again moved for
summary judgment. The district court granted judgment, finding no reasonable jury
could conclude the mold damage was an accident, or occurrence, as required for
coverage under the insurance policy. Walnut Grove appeals both summary
judgments.

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II.
This court reviews the grant of summary judgment de novo, applying the same
standard as the district court and viewing the record most favorably to the nonmoving
party. Herring v. Canada Life Assurance Co., 207 F.3d 1026, 1029 (8th Cir. 2000).
"Summary judgment is appropriate when no genuine issue of material fact remains
and the movant is entitled to judgment as a matter of law. . . . [I]f the record as a
whole could not lead a rational trier of fact to find for the non-moving party, there is
no genuine issue for trial." Rifkin v. McDonnell Douglas Corp., 78 F.3d 1277, 1280
(8th Cir. 1996); Fed. R. Civ. P. 56.
Walnut Grove claims the district court did not view the facts in a light most
favorable to it, the nonmoving party. The court, however, followed the appropriate
standard. Fed. R. Civ. P. 56; see Heisler v. Metro. Council, 339 F.3d 622, 627 (8th
Cir. 2003) ("Although a district court reviewing a summary judgment motion is to
assess the evidence in the light most favorable to the nonmoving party, that does not
mean that the district court must ignore other evidence").
"State law governs the interpretation of insurance policies." Nat'l U. Fire Ins.
Co. of Pittsburgh v. Terra Indus., Inc., 346 F.3d 1160, 1164 (8th Cir. 2003).
"Because insurance policies are in the nature of adhesive contracts, we construe their
provisions in a light most favorable to the insured." Krause v. Krause, 589 N.W.2d
721, 726 (Iowa 1999) quoting A.Y. McDonald Indus., Inc. v. Ins. Co. of N. Am., 475
N.W.2d 607, 619 (Iowa 1991). In determining coverage, the court looks first "to the
insuring agreement. If there is coverage, we look next to the exclusions. Last, if any
exclusions apply, we then consider whether . . . [there] is an exception to the
exclusion." Pursell Constr., Inc. v. Hawkeye-Sec. Ins. Co., 596 N.W.2d 67, 69 (Iowa
1999). Here, analysis at the first step is dispostitive because there is no coverage
under the policy. Id.

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In this case, coverage requires that an injury or damage to others is an
"occurrence." Walnut Grove contends that the development of mold and mold spores
is an occurrence under the policy. Walnut Grove asserts the district court erred in
finding that no reasonable jury could conclude the mold damage was an accident, or
occurrence.
The policy states:
SECTION II – BUSINESS LIABILITY AND MEDICAL PAYMENTS
INSURANCE
This section of the policy protects you and your business against claims
that result from injury to others, or damage to other's property. . . .
COVERAGE A. BODILY INJURY AND PROPERTY DAMAGE
LIABILITY
1. Insuring Agreement. We will pay those sums that the insured
becomes legally obligated to pay as damages because of bodily
injury or property damage to which this insurance applies. We
will have the right and duty to defend any suit seeking those
damages. . . . But:
. . .
c. The bodily injury or property damage must arise
from an occurrence . . . .
The policy defines: "Occurrence means an accident, including continuous or
repeated exposure to substantially the same general harmful conditions." (emphasis
added). Under Iowa law, this language is unambiguous and dispositive.
The Iowa Supreme Court has

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concluded that when "accident" is used in the definition of an
"occurrence," but left undefined in the policy, the ordinary meaning to
be given the term is "an undesigned, sudden, and unexpected event
usually of an afflictive or unfortunate character and often accompanied
by a manifestation of force. . . . [The term] clearly implies a misfortune
with concomitant damage to a victim, not the negligence which
eventually results in that misfortune."
Norwalk Ready Mixed Concrete, Inc. v. Travelers Ins. Co., 246 F.3d 1132, 1136-37
(8th Cir. 2001), quoting Pursell Constr., Inc. v. Hawkeye-Security Ins. Co., 596
N.W.2d 67, 71 (Iowa 1999) (alteration in original) (emphasis added).
Timothy John Urban, president of Urban Development Corp. (the general
partner of Walnut Grove), submitted an affidavit to the district court in support of its
motion for summary judgment. He avered that Walnut Grove notified American
Family of an alleged loss in August 2002, arising from the tenant's complaint that the
leased space was untenantable due to exposure to toxic mold.
During the state trial, Urban testified that mold is a legitimate concern of a
tenant in a space with a history of water infiltration. He knows that water infiltrating
a building can cause mold to grow in places that are not open to the naked eye, or
immediately visible, and that mold growing in these places can cause a tenant to suffer
from environmental affects of the mold.
More directly, Urban testified:
Q. By at least January of 2002, you had become aware that [the
tenants] were concerned there was mold growing in their leased
premises; correct?
A. Yes.

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2Walnut Grove contends there is a legal difference between mold and toxic
mold. Because it did not test or remediate when notified – which would have at least
determined the type of mold, or its effects – this attempted distinction fails.
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Q. And you were also made aware, at least by ... January of 2002,
that [the tenant] was claiming that their employees were getting
sick in the leased premises; weren't you?
A. Yes.
Q. At that point in time you could have had the premises tested or
inspected for mold; couldn't you?
A. Yes, we could have.
. . .
Q. And at that time you could have hired somebody to go in and
remediate whatever mold was there; correct?
A. We could have.
Q. And again you chose not to?
A. Right.
Contrary to this uncontroverted testimony, Walnut Grove says in its brief:
"There was no evidence in the record that there was any mold in existence prior to
January 2002 or even subsequent to January 2002 until April 2002." They also state:
"When the water intrusion occurred in April of 2002, there was a sudden and
accidental physical injury which resulted in mold."
During oral argument before this court, however, Walnut Grove acknowledged
that mold began developing in 2001.2 At oral argument, when asked if the occurrence
occurred in April 2002, Walnut Grove said "No," continuing: "The occurrence

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happens when the mold develops." When queried as to when mold developed, Walnut
Grove stated: "We do know that the water infiltrations substantially ended in October
2001 and that the mold had developed sometime prior to that." When asked if there
was water infiltration in April 2002, Walnut Grove responded: "There was water
infiltration in April 2002, and we're not arguing that the mold, if there was any mold,
that developed after the April 2002, was covered. What we're talking about is the
mold that developed from the 2001 intrusions because that appears to be the mold that
caused the damage to the third parties. And that appears to be the case viewing the
facts in the light most favorable to the plaintiff . . . ." (emphasis added).
Thus, before October 2001 or January 2002, Walnut Grove was on notice of
mold in the leased space. It undertook no investigation or remediation. The tenant
began extensive remediation in June 2002, terminating the lease in July. Viewing the
facts most favorably to Walnut Grove, at least six months elapsed between notice of
mold and the date of alleged loss. Therefore, the mold in this case does not constitute
"an undesigned, sudden, and unexpected event" as required by the policy. Norwalk,
246 F.3d at 1136-37. See City of Carter Lake v. Aetna Cas. & Sur. Co., 604 F.2d
1052, 1055 (8th Cir. 1979) (Five months between first notice to the insured and
second loss to third party not covered by insurance policy). See also Dico, Inc. v.
Employers Ins. of Wausau, 581 N.W.2d 607, 613-12 (Iowa 1998) quoting Iowa
Comprehensive Pertroleum Underground Storage Tank Fund Bd. v. Farmland
Mut. Ins. Co., 568 N.W.2d 815, 818 (Iowa 1997) ("While ... first drop of leakage
might be sudden, . . . contamination occurring over a period of time falls outside the
definition of 'accident'"); Modern Equip. Co. v. Cont'l W. Ins. Co., Inc., 355 F.3d
1125, 1129 (8th Cir. 2004) ("[T]he purpose of a commercial general liability policy
. . . is to provide coverage for tort liability for physical damage to others, and not to
insulate an insured from economic losses flowing from breach of its contractual
duties").

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3Walnut Grove cites Weber for the proposition that an "accident" required an
"unintended event." In Weber, the clause in the policy – a "sudden and accidental"
clause – is different than the one at issue here.
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Walnut Grove objects to summary judgment because it did not intend for mold
to develop. Walnut Grove claims, "American Family would need to prove in its
motion for summary judgment, to such a degree that reasonable people could not
differ, that Mr. Urban and those who act for [Walnut Grove] both intended the water
to come in and the mold to develop and the mold to cause injury or untenantability to
[tenant] and its tenants and employees." Walnut Grove cites an inapposite case, with
a different coverage clause. See First Newton Nat'l Bank v. Gen. Cas. Co. of Wis.,
426 N.W.2d 618, 624-25 (Iowa 1988). Unlike the policy in First Newton, the present
policy does not define an occurrence to include the absence of intent. Id. See Pursell,
596 N.W.2d at 71 (analyzing clause identical to present policy). The Iowa Supreme
Court has interpreted the exact clause at issue here without mentioning intent.
Pursell, 596 N.W.2d at 71. The term "accident" within the definition of an
"occurrence" is "an undesigned, sudden, and unexpected event . . . not the negligence
which eventually results in that misfortune." Id., quoting Cent. Bearings Co. v.
Wolverine Ins. Co., 179 N.W.2d 443, 448 (Iowa 1970). 3
Walnut Grove further attacks the district court's judgment, stating it applied an
incorrect standard, reasonable forseeability, to interpret the term "unexpected." In
fact, neither the court nor the parties refer to reasonable forseeability in the summary
judgment record. The district court states: "Under Iowa law, in order for an event to
constitute an accident, and consequently, an occurrence, an event must be
unexpected," citing the Iowa Supreme Court case relied on by Walnut Grove. See
Weber v. IMT Ins. Co., 462 N.W.2d 283, 287 (Iowa 1990). Walnut Grove also
asserts error in the district court's citation, as additional authority, to Estate of Wade
v. Continental Insurance Co., 514 F.2d 304, 306-07 (8th Cir. 1975). This assertion
fails because the court applied the correct standard and because the Iowa Supreme

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Court in Weber used the exact citation and parenthetical as the district court here. See
Walnut Grove Partners, L.P. v. Am. Family Mut. Ins. Co., No.04-cv-10168, slip op.
at 5 (S.D. Iowa October 4, 2004); Weber, 462 N.W.2d at 287, citing Wade, 515 F.2d
at 306-07.
Additionally, the word "expected denotes that the actor knew or should have
known that there was a substantial probability that certain consequences will result
from his actions." Weber, 462 N.W.2d at 287, quoting Carter Lake, 604 F.2d at
1058-59. Substantial probability requires more than reasonable foreseeability. "The
indications must be strong enough to alert a reasonably prudent man not only to the
possibility of the results occurring but the indications also must be sufficient to
forewarn him that the results are highly likely to occur." Carter Lake, 604 F.2d at
1059 n.4; Weber, 462 N.W.2d at 287.
Walnut Grove says: "The reasoning of the Carter Lake case should control the
outcome in the case now before the court . . . ." In Carter Lake, sewage repeatedly
backed-up into the basement of a private home due to the failure of city equipment.
The city, as the insured, sought coverage for clean-up of the basement. This court,
under Iowa law, found: "Once the city was alerted to the problem, its cause, and the
likelihood of reoccurrence, it could not ignore the problem and then look to [the
insurance company] to reimburse it for liability incurred by reason of such inaction."
Carter Lake, 604 F.2d at 1059.
At oral argument, Walnut Grove posited: "In the Carter Lake case, the court
said after the first discovery of the sewage back-up – then nothing else after that is
covered. Here, after the first discovery of mold which was in April 2001, then no
further discoveries of mold should be covered, and that would be the appropriate
application of the Carter Lake case." In this case, the record is uncontroverted;
Walnut Grove knew of multiple water infiltrations that occurred over years. It did not
remediate the mold problem, which made the space untenatable. In its brief to this

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court, Walnut Grove claims the occurrence is the mold which resulted from a water
intrusion in April 2002. According to the undisputed testimony, however, at least by
January 2002, Walnut Grove was on notice of mold in the leased space. The mold in
2002, therefore, was not unexpected. No question of material fact remains. American
Family is entitled to judgment as a matter of law.
The judgment of the district court is affirmed.
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