Montee v. State Farm Fire & Casualty Co.

782 P.2d 435, 99 Or. App. 401

• Court: Court of Appeals of Oregon
• Decided: November 15, 1989
• Docket: CV87-115; CA A47580
• Status: Published

Opinions

RICHARDSON, J.

Plaintiffs brought this action on a homeowner’s insurance policy, issued by defendant,¹ to recover for physical damage to their house. The trial court granted defendant’s motion for summary judgment, and plaintiffs appeal from the resulting judgment.² We affirm.

On February 23,1986, during the policy period, plaintiffs saw a crack in their basement wall. During the next week, the crack enlarged, other cracks appeared upstairs, doors became misaligned with their frames and did not close properly, plaster on the walls bulged, and plaintiffs heard cracking, popping and creaking noises in the house. A city water department employe discovered that water was running from a broken pipe in an unoccupied house uphill from and adjacent to plaintiffs’ home. The water ran under the earth to plaintiffs’ foundation. On March 2,1986, the employe shut off the water at the adjacent house. Plaintiffs observed no further damage or movement of their house.

Defendant asked an engineer to investigate the loss. He reported that, between January 3, 1986, and March 2, 1986, 63,500 gallons of water had escaped from the broken pipe. He concluded:

“That the visible damage to the structure occurred in the recent past is evidenced by cracks in the foundation wall that occurred after the walls were painted, doors that stick in locations where there are no indications of previous wear marks, and door latches that do not line up with striker plates or old latch marks on striker plates.

“The structure has experienced an uneven settlement which has twisted the house. The greatest settlement appears to be at the northwest corner of the foundation. This most probably occurred as a result of abnormal amounts of ground water in that vicinity.

“The above information leads to the conclusion that structural damage to the subject foundation is a result of water flowing freely from a broken pipe in the vacant house to the north over a period of 58 days. The flow of water followed the natural slope of the ground south toward the northwest corner of the subject foundation, reducing the bearing capacity of the soil under the foundation, thus causing uneven settlement.”

In an affidavit that defendant submitted in support of its motion, the engineer stated the opinion that the settling of plaintiffs’ home “was most probably due * * * to the erosion, sinking, or contraction of the soil around the home’s foundation.”

The policy contains the exclusion:

“1. We do not insure for loss to the property described in Coverage A either consisting of, or directly and immediately caused by, one or more of the following:

U* * * * *

“(i) settling, cracking, shrinking, bulging, or expansion of pavements, patios, foundation, walls, floors, roofs, or ceilings;

<<* * * * *

“However, we do insure for any ensuing loss from items a. through j. unless the loss is itself a Loss Not Insured by this Section.” (Emphasis supplied.)

Defendant contends that plaintiffs’ losses consisted entirely of cracking and bulging of walls and settlement of the foundation and are therefore excluded. Plaintiffs argue that the exclusion does not apply to settling and cracking caused by “some external force rather than * * * normal or gradual * * * settling or cracking.” Consequently, they contend, it does not apply to their losses, which were caused by water from the neighboring house. Plaintiffs also maintain that the losses were “serious and to the point of impairment of the structural integrity of the home” and, therefore, did not consist solely of settling and cracking, but amounted to a “collapse” that ensued from the settling and cracking. Defendant responds that the external or natural cause of the damage is not a relevant issue, because the policy excludes losses consisting of settling and cracking, regardless of their cause. Defendant argues further that the house did not collapse, and that plaintiffs’ contention based on the seriousness of the damage disregards the fact that the kinds of damage were settling, cracking and other phenomena enumerated in the exclusion.³

We agree with defendant. The cause of the losses has no bearing on whether they consist of the excluded kinds of damage. The cases from other jurisdictions on which plaintiffs rely, e.g., Ariston Airline & Cater. Sup. v. Forbes, 211 NJ Super 472, 511 A2d 1278 (1986), and Souza v. Corvick, 441 F2d 1013 (DC Cir 1970), are largely inapposite, because the decisive issue in them was whether the causes of the losses brought them within the exclusions. In any event, we do not find those cases to be persuasive.

We also disagree with plaintiffs’ argument that the damage constituted a “collapse” that ensued from the settling and cracking. Nothing in the record indicates that the house actually collapsed or that the particular damages were not of the excluded kinds. Plaintiffs’ point seems to be that, given the sheer volume and severity of the settling and cracking, the whole must be regarded as different from the sum of the parts, and the aggregate loss must be viewed as different in kind from the particular damages that comprised it. Had the house in fact collapsed, that might have been an “ensuing loss” within the meaning of the exclusion. However, we do not agree that the extensiveness and seriousness of the settling and cracking mean that the overall loss was something other than settling and cracking, or that it ensued from settling and cracking. In effect, plaintiffs urge us to read the policy as excluding coverage only for minor settling and cracking; the language of the exclusion does not permit that reading.

The dissent would conclude that the exclusion is ambiguous and can therefore allow coverage of plaintiffs’ damages. We discern no ambiguity. It is unnecessary and impossible for us to equal the length or the fervor of the dissent’s discussion, because the essence of our conclusion is that the contractual language speaks for itself. We nevertheless note that the labored reasoning that the dissent must employ in its pursuit of an ambiguity is further proof that none exists. See Mortgage Bancorp, v. New Hampshire Ins. Co., 67 Or App 261, 264, 677 P2d 726, rev den 297 Or 339 (1984). The language of the exclusion is clear, and it applies to all of the losses in question.

Affirmed.

1 Plaintiffs also sued to recover damages for their loss from defendant Doyle, the adjacent property owner. The judgment does not dispose of the claim against him, and he is not a party to the appeal. The judgment meets the finality requirements of ORCP 67B. We refer to defendant insurer as “defendant.”

2 Plaintiffs assign error to the denial of their motion for summary judgment as well as to the granting of defendant’s.

3 Because we agree with defendant regarding this exclusion, it is unnecessary for us to decide whether the losses also come within the “earth movement” exclusion of the policy.