Kelley

dissenting:

I respectfully dissent. There is a triable issue of material fact on the question whether Kelley’s cattle were being “unloaded” within the meaning of the exclusion on Kelley’s farm liability policy. This issue of fact should be decided by a jury.

With due respect to the majority, not every provision of an insurance policy which excludes coverage must be interpreted in favor of the insured. First, we must attempt to interpret it accurately, consistent with canons of construction and the evidence adduced. Then, only if such efforts yield ambiguous or vague interpretations can we reach for the rule that interprets in favor of the insured. To do otherwise puts the cart in front of the heifer. The term “finally delivered” is neither ambiguous nor vague. But it does require interpretation to determine whether it applies to the circumstances of this case: were the cattle “finally delivered” if a gap existed between the trailer and the unloading chute? We can provide just that interpretation by looking to Washington law and letting the jury determine, as a question of fact, the terms of the contract, and whether Kelley had performed: were the cattle “finally…

MEMORANDUM *

The district court properly granted summary judgment to Michael and Dixie Kelley. The “unloading provision” within the farm liability insurance policy issued by North Pacific Insurance Company (“North Pacific”) is ambiguous because the phrase, “place where it is finally delivered,” can reasonably mean two different things. See McDonald Indus, v. Rollins Leasing Corp., 95 Wash.2d 909 , 631 P.2d 947, 949 (1981) (“Coverage is considered ambiguous when, on its face, it is fairly susceptible to two different interpretations, both of which are reasonable.” (internal quotation marks omitted)). The phrase can be interpreted as meaning that the cattle were not finally delivered until they reached “a location where they were safely contained,” or alternatively it can be interpreted to mean that “delivery was complete when the cows’ hooves hit the pavement.” Having determined that the phrase, “the place where it is finally delivered,” is ambiguous, we must assign it the meaning more favorable to the Kelleys, as the insured. See id. (“It is fundamental that ambiguities in the policy must be construed against the insurer and in favor of the insured. This rule applies with added…