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Vol. 7, Iss. 4
May 9, 2018


Doobie-ous Decision: Marijuana House May Be One’s Principal Residence

The court’s decision in Weingarten v. Auto-Owners Insurance Co., No. 17-1401 (D. Colo. Apr. 17, 2018) will be of very little practical value for Coverage Opinions readers. It is a first-party property case, which is not what the vast majority of CO readers handle. And, even for those who do, the facts are really unique and have a low probability of arising again. Nonetheless it is a very interesting case. And CO article titles, with marijuana in the name, surely get read more than one’s announcing – click here to read about additional insureds.

Initially, a Colorado District Court granted summary judgment for an insurer in some sort of homeowner’s property case. The case I’m discussing here, a subsequent one, does not describe the nature of the property damage. It has something to do with virtually the entire use of the home for a marijuana grow operation. I could do a few minutes of research to find out more but it’s not important to cheech the lesson here. The court granted summary judgment on the basis that the policyholders were not able to demonstrate a disputed fact that their house was being used principally as a private residence, which was a requirement to secure coverage. The best the homeowners could do was offer a conclusory statement that people were living in the joint. This was not enough as the court saw it.

But the policyholders were not ready to roll over. They filed a motion for reconsideration, attempting to introduce previously unavailable photos and a video of the home (new evidence, previously unavailable, is a basis for a motion for reconsideration, the court noted).

Based on the photos and video, the court, describing it as a “very close call,” concluded that there was now a disputed issue of fact as to whether the individuals growing marijuana were principally using the house as their private residence (i.e., chief, primary or most important use for the property).

Here’s what the photos and video showed: “The pictures reveal that the individuals using the property paid for internet and received mail at the property. The video shows that the house contained a dining room table, photographs and art on the walls, a couch, a television, a washing machine and a bottle of detergent with clothes hanging nearby, and a pool table.”

The court concluded that “[t]hese aspects of the video demonstrate that individuals may have used the house for entertainment, daily meals, and regular chores, which is some indicia that the house was used principally as a private residence. Additionally, the video shows mattresses in two bedrooms; a desk, an office chair, and a night stand in one of the bedrooms; a bathroom with a toothbrush and mouthwash on the sink; clothes in one of the closets; and a coffee pot with coffee grounds in the kitchen.”

But the court was also quick to note that the video and photographs also supported the notion that the house was used principally as a marijuana grow operation.

The motion for reconsideration was granted.

Incidentally, why, you wonder, were the photos and video unavailable at the time that the court was addressing summary judgment? It was in the District Attorney’s file for the prosecution of the individuals allegedly growing marijuana at the property.

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