Auto Owners Ins. Co. v. Allen, 78-604
| Decision Date | 15 September 1978 |
| Docket Number | No. 78-604,78-604 |
| Citation | 362 So.2d 176 |
| Parties | AUTO OWNERS INSURANCE COMPANY, Appellant, v. Robert ALLEN and Diane Kay Allen, Appellees. |
| Court | Florida District Court of Appeals |
Edward E. Fessenden, Jr. of Lane, Massey, Trohn, Clarke, Bertrand & Smith, Lakeland, for appellant.
R. Scott Bunn of Straughn, Sharit, Bunn & Chilton, Winter Haven, for appellees.
Appellees/plaintiffs Robert and Diane Kay Allen owned a motel which was covered by a policy of insurance issued by appellant/defendant Auto Owners Insurance Company. The motel was of concrete block construction.
While a trench was being dug next to the back wall of the motel in order to lay sewer pipe, sandy soil fell away from the footings supporting the wall. Appellant denied coverage under its policy for the resulting damage. The issue on this appeal is whether there was coverage under the following language contained in the policy of insurance:
Collapse: Loss by collapse shall mean only the collapse of the building or any part thereof. The Company shall not be liable as respects this peril for loss:
2. by settling, cracking, shrinkage, bulging or expansion of pavements, patios, foundations, walls, floors, roofs, or ceilings;
all except as a direct result of the collapse of a building.
It is undisputed that the concrete blocks in the wall separated, a condition which appellant describes as "cracks." It is also undisputed that the wall bulged outward and away from the concrete slab floor. Appellant contends that there was settling, cracking, and bulging within the meaning of the exclusionary language of the policy. Appellees contend that there was a "collapse." Appellees rely on an affidavit of an independent expert submitted in support of their motion for partial summary judgment, which described the damage. He stated that one exterior wall of the building had collapsed and a second was leaning out from the interior wall a significant distance. It was his opinion that the roof was kept from immediately falling only by resting on the interior walls and that "the function of the wall and building (including the function of supporting the superstructure) was impaired and the total building . . . was in imminent danger of falling further."
The trial judge ruled that the motel wall had collapsed and that there was no issue as to that fact. He then entered a partial summary judgment for plaintiffs on the issue of liability. This interlocutory appeal followed.
The parameters of the degree or nature of damage which will constitute a collapse under a policy provision such as the one at issue in the case before us has not yet been treated by an appellate court opinion in Florida. There are, however, numerous cases in other jurisdictions which have done so, and there is a split of opinion among them. See Annot., 11 A.L.R.3d 1072 (1967). We agree with those jurisdictions which have concluded that a policy similar to the one at issue here provides coverage for a building which has suffered material or substantial impairment of its basic structure. 1 We recognize that this is the minority position but think it is the better view.
It is appellant's contention that the exclusion of loss "by settling, cracking, shrinkage, bulging or expansion" was specifically designed to avoid ambiguity so as to limit its liability to loss occasioned by a building, or any part of it, which has been reduced to a flattened form or rubble. We cannot accept this construction. If appellant had intended to limit its liability as it argues, it would have been a...
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...over or otherwise had been declared unsafe for their intended purposes, in most cases both. See, e.g., Auto Owners Ins. Co. v. Allen , 362 So. 2d 176, 176–77 (Fla. App. 1978) ("[The homeowners' expert] stated that one exterior wall of the building had collapsed and a second was leaning out ......
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