Bergeron v. State Farm Fire & Casualty Co.

766 A.2d 256, 145 N.H. 391, 2000 N.H. LEXIS 76
CourtSupreme Court of New Hampshire
DecidedNovember 15, 2000
DocketNo. 98-257
StatusPublished
Cited by2 cases

This text of 766 A.2d 256 (Bergeron v. State Farm Fire & Casualty Co.) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bergeron v. State Farm Fire & Casualty Co., 766 A.2d 256, 145 N.H. 391, 2000 N.H. LEXIS 76 (N.H. 2000).

Opinion

DALIANIS, J.

The plaintiffs, Robert M. and Virginia V. Bergeron, appeal the Superior Court’s (Smukler, J.) denial of their petition for declaratory judgment, see RSA 491:22 (1997), to establish coverage under a homeowners insurance policy (policy) issued by the defendant, State Farm Fire and Casualty Company, for damages sustained as a result of a dam’s failure on their property. We affirm.

The following facts were adduced at the hearing. In 1992, the plaintiffs purchased property in Alton, which consisted of a barn foundation, septic system, thirty-three acre pond, and a dam that impounded the pond. The plaintiffs reconstructed the dam. They also purchased a builder’s risk policy from the defendant that was later converted into a homeowners policy upon the substantial completion of their home. This policy was in effect on the date of the incident.

On March 13, 1996, the Bergerons’ dam collapsed. Several engineering firms investigated the dam’s failure and concluded that it failed because of “piping.” Piping is the migration of the materials of which the dam is constructed, which creates an open flow, or pipe, within the dam. The dam’s design and construction caused it to be susceptible to piping.

The plaintiffs brought a petition for declaratory judgment to determine whether their policy covered the dam’s failure. They contended that there was coverage because the dam was a “building” which “collapsed” either from: (1) an “explosion” of part of the dam; or (2) “hidden decay.” Each alternative would entitle the plaintiffs to recover under the policy. The trial court found that the defendant had met its burden of proving, see RSA 491:22-a (1997), that the policy did not cover the incident because the dam was not a “building” nor was its failure caused by an “explosion” or by “hidden decay.”

On appeal, the plaintiffs contend that the trial court erred by: (1) construing certain undefined terms in the policy, including “explosion,” “building,” and “hidden decay”; (2) failing to find coverage under the “any resulting loss” section of the policy; and (3) admitting the presentation and related testimony of the defendant’s expert regarding whether an “explosion” occurred.

[393]*393“The interpretation of an insurance policy is a question of law for this court to decide.” Bianco Prof. Assoc. v. Home Ins. Co., 144 N.H. 288, 292, 740 A.2d 1051, 1055 (1999). “In interpreting an insurance policy, we take the plain and ordinary meaning of the policy’s words in context, and we construe the terms of the policy as would a reasonable person in the position of the insured based on more than a casual reading of the policy as a whole.” Federal Bake Shop v. Farmington Cas. Co., 144 N.H. 40, 42, 736 A.2d 459, 460 (1999) (quotation omitted).

Our analysis of the policy begins with SECTION I — COVERAGES, which states:

Dwelling Extension. We cover other structures on the residence premises, separated from the dwelling by clear space. Structures connected to the dwelling by only a fence, utility line, or similar connection are considered to be other structures.

The parties agree that the dam constitutes an “other structure” under the policy. SECTION I — LOSSES INSURED, COVERAGE A — DWELLING, states that the defendant will provide coverage “for accidental direct physical loss to the property described in Coverage A, except as provided in SECTION I — LOSSES NOT INSURED.” Therefore, the dam is covered by the policy unless coverage is withdrawn by the “losses not insured” section.

SECTION I — LOSSES NOT INSURED states, in pertinent part, that the defendant

do[es] not insure for any loss to the property described in Coverage A which consists of, or is directly and immediately caused by, one or more of the perils listed in items a. through m. below, regardless of whether the loss occurs suddenly or gradually, involves isolated or widespread damage, arises from natural or external forces, or occurs as a result of any combination of these:
a. collapse, except as specifically provided in SECTION I — ADDITIONAL COVERAGES, Collapse; [394]*394insure[s]-for direct physical loss to covered property involving collapse of a building or any part of a building caused only by one or more of the following:

[393]*393The parties also agree that the dam collapsed. Thus, we turn to SECTION I — ADDITIONAL COVERAGES, Collapse, which provides that the defendant

[394]*394a. perils described in SECTION I — LOSSES INSURED, COVERAGE B - PERSONAL PROPERTY. These perils apply to covered building and personal property for loss insured by this Additional Coverage;
b. hidden decay;

SECTION I — LOSSES INSURED, -COVERAGE B — PERSONAL PROPERTY provides that the defendant will insure “for accidental direct physical loss to property described in Coverage B caused by the following perils, except as provided in SECTION I — LOSSES NOT INSURED: . . . Explosion.” Thus, the plaintiffs conclude that the combination of these sections provides coverage for the dam’s collapse because the dam is a “building,” and its “collapse” was caused either by an “explosion” or by “hidden decay.”

The plaintiffs first contend that the trial court erred in concluding that a reasonable reading of the term “building” did not include the dam. Alternatively, they contend that it is at least ambiguous as to whether the term “building” includes the dam and therefore the policy should be construed in favor of coverage. We disagree that a reasonable.reading of the term “building” clearly encompasses the dam, see 1 M. RHODES, COUCH ON INSURANCE 2D § 6:7 (rev. ed. 1984) (“[a] ‘building’ is defined as a ‘fabric or edifice, framed or constructed, designed to stand more or less permanently and covering á space of land for use as a dwelling, storehouse, a factory, shelter, etc.’”), and turn instead to the question of whether the term “building” as used in the policy is ambiguous.

We have previously stated that “[i]f the language of a policy is reasonably susceptible to more than one interpretation and one interpretation favors coverage, the policy will be construed in favor of the insured and against the insurer.” Hudson v. Farm Family Mut. Ins. Co., 142 N.H. 144, 146, 697 A.2d 501, 503 (1997). “We will not, however, perform amazing feats of linguistic gymnastics to find a term ambiguous.” Federal Bake Shop, 144 N.H. at 42, 736 A.2d at 460 (quotation omitted).

The plaintiffs submitted two dictionaries into evidence, which defined the term “building” respectively as a “permanent fixed structure,” THE OXFORD DESK DICTIONARY 76 (American ed. [395]*3951995), and as a “structure; edifice,” THE AMERICAN HERITAGE DICTIONARY 114 (3d ed. 1992). The trial court used a third dictionary to obtain a narrower definition of “building.” We also found the following definition:

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Bluebook (online)
766 A.2d 256, 145 N.H. 391, 2000 N.H. LEXIS 76, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bergeron-v-state-farm-fire-casualty-co-nh-2000.