Anderson v. Indiana Lumbermens Mutual Ins. Co.

127 So. 2d 304
CourtLouisiana Court of Appeal
DecidedApril 7, 1961
Docket9386
StatusPublished
Cited by33 cases

This text of 127 So. 2d 304 (Anderson v. Indiana Lumbermens Mutual Ins. Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anderson v. Indiana Lumbermens Mutual Ins. Co., 127 So. 2d 304 (La. Ct. App. 1961).

Opinion

127 So.2d 304 (1961)

James D. ANDERSON, Plaintiff-Appellant,
v.
INDIANA LUMBERMENS MUTUAL INSURANCE COMPANY OF INDIANAPOLIS, INDIANA, Defendant-Appellee.

No. 9386.

Court of Appeal of Louisiana, Second Circuit.

February 2, 1961.
Rehearing Denied March 10, 1961.
Certiorari Granted April 7, 1961.

Brown, Fleniken & Dormer, Shreveport, for appellant.

Bodenheimer, Looney & Richie, Shreveport, for appellee.

Before GLADNEY, AYRES and BOLIN, JJ.

GLADNEY, Judge.

This suit was instituted by plaintiff, James D. Anderson, to recover from the defendant, Indiana Lumbermens Mutual Insurance Company of Indianapolis, Indiana, for a loss claimed under a policy of insurance which includes protection against certain perils, including under Section 4, subsection N of the policy "Collapse of building(s) or any part thereof." Plaintiff's suit was met by an exception of no cause or right of action filed on behalf of the *305 defendant insurer asserting that the allegations of plaintiff's petition failed to show that the damage claimed resulted from the collapse of the insured building in whole or in part, and that in any event the cause of damage to plaintiff's dwelling is not covered by the policy, but, in fact, is expressly excluded under Section 5 thereof, providing certain limitations and exclusions to the effect: "This Company Shall Not Be Liable * * * (2) As Respects Perils * * * N * * *: For Loss caused directly or indirectly by earthquake, or other earth movements except landslides; * * *" After argument the trial judge sustained the exception, holding the damage claimed and alleged in plaintiff's petition was not one of the perils insured against in defendant's policy. From this judgment plaintiff has appealed.

Whether or not a cause of action has been stated depends upon the pleaded facts of the petition. Therein plaintiff claims that while the policy was in force and effect, damages were sustained to his home, a brick veneer building situated in Lot 4 of the Dean Terrace Subdivision, Unit No. One, in Caddo Parish, Louisiana; that such damages exceeded the policy limits of $11,600; that the construction of his house was in accordance with plans and specifications acceptable to the Federal Housing Administration; that during August, 1959, a crack appeared in the wall of the house and since that time the crack has become larger and now extends into the ceiling of the living room and cracks have appeared in the wall, at every window and door in the house, and the door frames are out of square with the doors; that the concrete slab forming the base of the floor of the house and the foundation is broken, cracked, fallen and uneven, and the tile flooring between the kitchen and back bedroom has broken apart; that on the exterior the two rear corners are lower than the center portion of the rear wall, and cracks and separations extend upward in the brick from the concrete slab to the roof lines on all sides of the house; and that due to the collapse of said building, it will be necessary to remove the brick from the exterior, to jack up the roof, to replace the concrete slab and floors, realign the joists, rafters and sills, replace the sheet rock, and repaint the exterior and interior of the building. Further, it is alleged that petitioner's lot slopes downward from the street line to the rear; that the concrete slab is on a type of clay soil which is subject to seasonable changes, particularly extreme dry and extreme wet periods; that the expansion and contraction of the soil has caused the cracking, breaking and falling of the concrete slab with the falling, cracking, breaking and unequal settlement of the building, all of which is of such a nature as to materially impair the basic structural integrity of the building; and that said loss is covered by the policy.

The question presented on the appeal is whether the trial court correctly interpreted Section 4 N of the policy insuring plaintiff against the collapse of his building or any part thereof, and Section 5(2) providing the company shall not be liable with respect to perils insured against under Section 4 N, caused directly or indirectly by earthquakes or other earth movements, except landslides. A research of the jurisprudence of this state indicates the absence of any precedent or guiding judicial pronouncement. Judicial construction of the word "collapse" as used in similar policies, received consideration in Jenkins v. United States Fire Ins. Co., 1959, 185 Kan. 665, 347 P.2d 417; Travelers Fire Ins. Co. v. Whaley, 10 Cir., 1959, 272 F.2d 288; Central Mutual Ins. Co. v. Royal, 1959, 269 Ala. 372, 113 So.2d 680, 72 A.L.R.2d 1283, and Nugent v. General Ins. Co. of America, 8 Cir., 1958, 253 F.2d 800. All of these cases presented factual situations where the evidence or proof did not indicate the structure or any part thereof had completely fallen down or caved in. The two first mentioned cases construed the word "collapse" favorably to the insured and the two last mentioned decisions concluded there was no coverage.

*306 The LSA-Civil Code of Louisiana in Section 5 of Chapter 3 of Title IV (Articles 1945-1962), under the heading "Of The Interpretation Of Agreements" has set down for the guidance of the judiciary certain sound and reasonable rules. These, inter alia, provided that: "Courts are bound to give legal effect to all * * * contracts according to the true intent of all the parties", and such "intent is to be determined by the words of the contract, when these are clear and explicit and lead to no absurd consequences." Further, "All clauses of agreements are interpreted the one by the other, giving to each the sense that results from the entire act." When a clause is susceptible of two interpretations, it must be understood in that sense in which it may have some effect, rather than in a sense which would render it nugatory, (art. 1951), and only in doubtful cases will the agreement be interpreted against the party who contracted the obligation. Art. 1957. Reference to these rules of construction is frequently resorted to by our courts. Hemel v. State Farm Mutual Automobile Ins. Co., 1947, 211 La. 95, 29 So.2d 483. Another rule of law receiving universal acceptance is that all ambiguities must be construed in favor of the insured and against the insurer. In the case of Pullen v. Employers Liability Assurance Corporation, Ltd., 1956, 230 La. 867, 89 So.2d 373, the Supreme Court stated the following general rule for the interpretation of exclusion clauses appearing in contracts of insurance:

"The exclusion clause must necessarily be examined and interpreted in the light of its own design and intent, as well as in view of the objects and purposes of the policy. Once coverage has been extended, as it is quite clearly the purpose of the policy to do and as has been done here, it should be withdrawn only when exclusion is established with certainty. And because comprehensive exclusion is violative of the purpose and intent of policy coverage, exclusion must necessarily be specific and not general. It is specific, as distinguished from comprehensive, when it particularly identifies the insured or insureds intended to be excluded.

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Bluebook (online)
127 So. 2d 304, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anderson-v-indiana-lumbermens-mutual-ins-co-lactapp-1961.