This loss involves a condominium complex that has a standard ISO commercial property policy. Due to Hurricane Andrew in 1992, the insured's wood privacy fences or walls sustained severe damage. The standard ISO forms contain an exclusion of fencing; however, it affords coverage for retaining walls that are permanently attached to the building.
Our question is: if the wood privacy fences or walls are permanently attached to the buildings and cannot be removed without severely damaging the structure, would they be covered under the standard ISO CP policy? The definition from Black's Law Dictionary for “wall” is “an erection of stone, brick or material, raised to some height and intended for purposes of privacy, security, or enclosure.”
It is our opinion based on this definition as well as the fact that the wood fencing or “privacy wall” is permanently attached to the structure that the standard ISO policy must respond to this loss.
Florida Subscriber
A
In our opinion, the wooden privacy fences fall under the property not covered section of the ISO commercial property policy.
In Webster's Collegiate Dictionary (10th ed.), “fence” is defined as “a barrier intended to prevent escape or intrusion or to mark a boundary; esp. such a barrier made of posts and wire or boards.” This meaning is differentiated from “wall,” which can be “a masonry fence around a garden, park, or estate,” but can also be “a structure that serves to hold back pressure (as of water or sliding earth).”
Unfortunately for your client, given these definitions, and given that the privacy fence is attached to, and not a permanent part of, the building, it is difficult to argue for coverage. Further, the policy contemplates coverage for “retaining walls” that are part of the structure. The privacy fences are not retaining walls, even if they fit a loose definition of “wall.”
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