Driscoll v. Providence Mut. Fire Ins. Co.

• Decision Date: 13 June 2007
• Docket Number: No. 06-P-1137.,06-P-1137.
• Citation: 867 N.E.2d 806,69 Mass. App. Ct. 341
• Parties: Paul DRISCOLL & another<SMALL><SUP>1</SUP></SMALL> v. PROVIDENCE MUTUAL FIRE INSURANCE COMPANY.
• Court: Appeals Court of Massachusetts

867 N.E.2d 806

69 Mass. App. Ct. 341

Paul DRISCOLL & another¹ v. PROVIDENCE MUTUAL FIRE INSURANCE COMPANY.

No. 06-P-1137.

Appeals Court of Massachusetts, Worcester.

Argued March 20, 2007.

Decided June 13, 2007.

Stephen M.A. Woodworth, South Easton, for the defendant.

Douglas Q. Meystre, Worcester (Howard J. Potash with him) for the plaintiffs.

Present: DUFFLY, DREBEN, & MEADE, JJ.

MEADE, J.

This appeal arises from a dispute over the extent of coverage under a business owner's policy issued to the plaintiffs Paul and Denise Driscoll by the defendant, Providence Mutual Fire Insurance Company (Providence). In Superior Court, the Driscolls sought declaratory relief regarding the scope of coverage under their policy. After a trial based on an agreed statement of facts and the admission of certain evidence in lieu of testimony, a judgment entered declaring that the damage to the Driscolls' property was covered under the terms of the policy. Providence's appeal followed; we affirm.

1. Facts. Upon inspecting their Webster rental property to prepare it for a new tenant, the Driscolls discovered damage at that property, including outward-leaning outside walls, ceiling cracks, a two-inch drop in the roof, and other problems. The Driscolls timely submitted a claim to their insurance company, Providence. Providence denied the claim on the basis of its expert's opinion that the damage was caused by faulty roof design, a cause that is excluded from coverage in the Driscolls' policy. Unsatisfied with Providence's determination, the Driscolls hired their own engineer, who inspected the house and determined that faulty design had combined with the weight of snow from the prior winter to result in the property damage.

After trial, the judge ruled that the property damage was covered by the Driscolls' insurance policy.² The judge, as fact finder, accepted the engineers' opinions that "the precipitating cause of the damage to the Driscolls' property was the lack of stabilization devices, such as collar ties, in the attic, and that the damage is not related to settling or shrinkage."³ In addition, she found "that the weight of snow and ice from the winter of 1995-1996, . . . when coupled with the original construction design of the roof, caused most of the damage to the Driscolls' rental property."

2. Discussion. As noted, we will not disturb the judge's factual findings in this appeal. (See notes 2 and 3, supra.) Our task is to determine the effect of the insurance contract under the circumstances found. "The interpretation of an insurance policy is a `question of law for the trial judge, and then for the reviewing court.'" Clendenning v. Worcester Ins. Co., 45 Mass.App.Ct. 658, 660, 700 N.E.2d 846 (1998), quoting from Nelson v. Cambridge Mut. Fire Ins. Co., 30 Mass.App.Ct. 671, 673, 572 N.E.2d 594 (1991).

The Driscolls have a so-called "all risk" policy. See Bettigole v. American Employers Ins. Co., 30 Mass.App.Ct. 272, 272, 567 N.E.2d 1259 (1991). The policy broadly identifies the "Covered Causes of Loss" as follows under paragraph A.3.:

"RISKS OF DIRECT PHYSICAL LOSS unless the loss is: a. Excluded in Section B., Exclusions; or b. Limited in Paragraph A.4., Limitations. . . ."⁴

Given the policy's wide breadth of coverage, the insurer bears the burden of showing that the insured's claim falls within an exclusion. See Metropolitan Prop. & Cas. Ins. Co. v. Fitchburg Mut. Ins. Co., 58 Mass.App.Ct. 818, 820, 793 N.E.2d 1252 (2003). Here, Providence points to the collapse exclusion of paragraph B.2.i. as the applicable bar to coverage. This exclusion states that "[w]e will not pay for loss or damage caused by or resulting from any of the following:

". . .

"i. Collapse: Collapse, except as provided in the Additional Coverage for Collapse. But if loss or damage by a Covered Cause of Loss results at the described premises, we will pay for that resulting loss or damage."

In turn, the provision for "Additional Coverages" for collapse, paragraph A.5.d., states in relevant part as follows:

"We will pay for loss or damage caused by or resulting from risks of direct physical loss involving collapse of a building or any part of a building caused only by one or more of the following:

"(1) The `specified causes of loss'. . . ."

(Emphasis supplied.)

The phrase "specified causes of loss" is explained under the "Property Definitions" contained in paragraph H.6 as meaning:

"Fire; lighting; explosion, windstorm or hail; smoke; aircraft or vehicles; riot or civil commotion; vandalism; leakage from fire extinguishing equipment; sinkhole collapse; volcanic action; falling objects; weight of snow, ice or sleet; water damage. . . ."

(Emphasis supplied.)

Taken together, the collapse exclusion, paragraph B.2.i., and the "Additional Coverages" provision for collapse, paragraph A.5.d., mean that Providence only insures certain kinds of collapse, namely, those due only to the causes listed in the latter paragraph. Here, no reading of the judge's findings could lead to a conclusion that only the weight of the snow and ice caused this damage, even if the damage constituted a "collapse." Therefore, the "Additional Coverages" provision is inapplicable to this case.

We are therefore left to determine whether the collapse exclusion applies. We disagree with the judge's conclusion that the damage here amounted to a collapse. On this point, we view as controlling the opinion in Clendenning v. Worcester Ins. Co., 45 Mass.App.Ct. at 660-661, 700 N.E.2d 846. In that case, due to hidden damage caused by insects, portions of the plaintiff's home were in danger of collapse. Id. at 659, 700 N.E.2d 846. Prior to any collapse, the homeowners razed those portions of the house before their home insurer could inspect it. Ibid. The insurer argued that the homeowner was not entitled to recover for property damage (other than that produced by a workman who had jumped onto the roof of a side porch, causing some support beams to give way) because the insured structure itself never actually collapsed. Id. at 659-660, 700 N.E.2d 846. Agreeing with the insurer, we held that "collapse" included "both a temporal element of suddenness (though the noun may accommodate a gradual loss of structure) and a visual element of altered appearance that comprises a structural collapse, distinct from the degenerative process causing the collapse." Id. at 660, 700 N.E.2d 846. We added that "collapse, within the meaning of the policy, is a perceptible event or state caused by a specific degenerative process. . . . There are no degrees of collapse." Id. at 661, 700 N.E.2d 846. See Dreiblatt v. St. Paul Fire & Marine Ins. Co., 264 F.3d 126, 129-131 (1st Cir.2001).

Providence points out in its brief that the Driscolls' roof was still in place, any destruction had not run its full course, a change of only a few inches of roof sag was perceptible, and "there was no evidence of a sudden collapse." Providence correctly notes that "[n]o one in the case alleged a total collapse." Indeed, applying the Clendenning collapse definition to the facts of this case, it becomes clear that the collapse exception does not apply to the damage. The judge found that various types of damage had occurred: the outside walls leaned outward, cracks had appeared in the ceiling and interior walls, and there was a two-inch drop in the roof. None of these rises to the level of a Clendenning collapse. See Clendenning v. Worcester Ins. Co., 45 Mass.App.Ct. at 660-661, 700 N.E.2d 846.

Put simply, the coverage in the Driscolls' policy is broad. Although the "Additional Coverages" for collapse provision does not apply, neither does the underlying collapse exclusion. The Driscolls' claim, unlike the Clendenning claim, did not require a finding that a collapse occurred in order for a loss to be covered. In Clendenning, the policy expressly excluded damage caused by insects except as may have been hidden and which resulted in a collapse of the structure. Clendenning v. Worcester Ins. Co., 45 Mass.App. Ct. at 659-661, 700 N.E.2d 846. Here, the physical damage caused by the weight of snow and ice is nowhere excluded, and to be covered, damage so caused does not require a collapse under the Driscolls' policy.

Furthermore, no other exclusions apply. This includes the exclusion for settling, cracking, shrinking, or expansion under paragraph B.2.k.(4),⁵ which the judge specifically and correctly found did not occur, and the exclusion for faulty workmanship or construction under paragraph B.3.c.⁶ The latter exclusion does not apply because it is preceded by the following language: "We will not pay for loss or damage caused by or resulting from any of the following. But if loss or damage by a Covered Cause of Loss results, we will pay for that resulting loss or damage." Covered causes are, according to paragraph A.3. discussed above, all causes except those excluded in section B (or limited by paragraph A.4.). The judge found that both faulty design and the weight of snow and ice caused the damage. The latter is a covered cause of loss which is not excluded, and therefore the faulty design exclusion does not bar coverage. See Couch on Insurance § 101:47 (3d ed.2005) ("unless there is an express policy provision to the contrary, the requirement that the peril insured against be the proximate cause of the loss does not require that it be the sole cause of the loss. . . .").

Unlike the exclusion in paragraph B.1.,⁷ the exclusion in paragraph B.3. does not include an anticoncurrent cause provision, which would bar coverage for damage due to certain causes regardless of otherwise covered causes of damage. See Jussim v. Massachusetts Bay Ins. Co.,...