Employers Mut. Cas. Co. of Des Moines, Iowa v. Nelson
| Decision Date | 24 October 1962 |
| Docket Number | No. A-8751,A-8751 |
| Citation | 361 S.W.2d 704 |
| Parties | EMPLOYERS MUTUAL CASUALTY COMPANY OF DES MOINES, IOWA, Petitioner, v. William Martin NELSON, Respondent. |
| Court | Texas Supreme Court |
Bryan & Patton, Julietta Jarvis, Houston, with above firm, for petitioner.
Blakeley & Williams, Houston, for respondent.
The respondent, Nelson, filed this suit against Employers Mutual Casualty Company to recover under a standard 'physical loss' policy of insurance issued by it covering Nelson's residence in the City of Houston. Judgment was entered for the insured based on a jury verdict. The Court of Civil Appeals has affirmed. 351 S.W.2d 278.
Nelson's home is of frame construction, with composition type roof. On or about June 24, 1957, a construction company operating under authority from the City commenced the excavation for a sewer line along the street in front of Nelson's home. The insured complains of various items of damage to his house including cracks in the foundation and sheetrock walls, misalignment of doors and slanting of the floors, all of which he alleges were caused by the company in the construction and installation of this sewer line.
Insured asserts that the damage resulted from vibration and concussion caused by the repeated dropping of a large steel ball used in breaking up the pavement and the installation and removal of steel pilings. In addition as a contributing cause he claims that there existed beneath his foundation a stratum of sand which shifts when lateral support is removed and that shifting occurred by reason of the sewer excavation.
At the outset the insurer contends that no recovery under this policy is permitted because it expressly excludes loss occasioned by enforcement of any local or state ordinance or law regulating the construction, repair or demolition of buildings or structures. Under this exclusion the insurer maintains that since the sewer construction contract was let in accordance with a valid ordinance of the City providing therefor, if the loss as claimed was occasioned by the construction of the sewer, then there is no coverage provided.
The point is not well taken. The exclusion, in our opinion, has reference to damage brought about by the exercise of the police power rather than that produced on account of work contracted for by the authorities. The cases relied upon by the insurer bear out this distinction.
In Conner v. Manchester Assurance Co., 9 Cir., 130 F. 743, the policy provided that the insurer should not be liable for loss caused directly or indirectly order of any civil authority. The county supervisors under statutory authority ordered fires started to destroy harmful insects. The insured was not allowed recovery for grain damaged by the fire even though the loss was indirectly caused thereby and was not an intentional result. On somewhat similar facts and under a like exclusionary provision recovery was also denied in Hocking v. British American Assurance Co., 62 Wash. 73, 113 P. 259, 36 L.R.A.,N.S., 1155; Joplin v. National L. S. Ins. Ass'n, 61 Or. 544, 122 P. 897, 44 L.R.A.,N.S., 569; Aetna Ins. Co. v. Boon, 95 U.S. 117, 24 L.Ed. 395.
The City is not liable for the enforcement of an ordinance regulating the health and welfare of its citizens but is responsible when it damages or takes property in the construction of public works and this we think points up the distinction.
What the policy excludes is such damages for instance as that caused by the enforcement of an ordinance condemning property that is hazardous and unsafe, zoning regulations and the like. 1
The insurer further contends that whatever damage there was to insured's house was the result of normal forces of nature and therefore not covered by the terms of the policy since it excludes and does not insure against 'normal settling, shrinkage or expansion in foundations, walls, floors or ceilings,'; however, the exclusion expressly does not apply to 'total or partial collapse'. The jury found that the damages were not the result of normal settling and also found that the house suffered a partial collapse.
The first issue was submitted as follows:
'Was the damage, if any, to the plaintiff's house which occurred subsequent to June 24, 1957, the result of normal settling, shrinkage or expansion in foundations, walls, floors or ceilings?
'If you find from a preponderance of the evidence that such damage, if any, was not caused by normal settling, shrinkage or expansion in foundations, walls, floors, or ceilings, let your answer be, 'It was not the result of normal settling.' Otherwise, let your answer be, 'It was the result of normal settling.'
'In connection with the foregoing Special Issue, you are instructed that the term 'normal settling' means a sinking or subsidence caused by usual or regular conditions, as distinct from abnormal (that is, unusual or irregular) conditions.'
The insurer objected to the definition of 'normal settling' and to the refusal of its request that the term 'normal' be defined as including 'not only those forces which are constantly and habitually operating, but also those forces which operate periodically or with a certain degree of frequency.' The company's position is that the instruction given by the court is too restrictive because periodic weather conditions of drouth and rainfall are normal even though unusual or irregular. Hence, it claims that the jury might well have considered that although the damage was inflicted on account of periodic conditions the settling or expansion was not normal because those conditions were to be taken as unusual and irregular, and hence abnormal.
The Restatement of Law, Torts, § 302, defines the word 'normal' as follows:
While this definition is drawn from a discussion of negligence, nevertheless we think it correctly applies to the situation here. It is expressly approved in In re New Jersey Power & Light Co., 9 N.J. 89 A.2d 26, Power & Light Co., 9 N.J 498, 89 A.2d 26,
The insurer also excepted to the form of the issue on the ground that it overemphasized 'settling' and omitted the equally important matter of 'expansion'. Only the term 'normal settling' was defined. In our opinion the issue and definition did not furnish to the jury a fair and adequate opportunity of passing upon the question of whether or not the damage was covered by the terms of the policy.
The insurer's expert testified to the effect that neither the digging of a storm sewer nor any of the work in connection therewith caused any of the damage complained of, but that it resulted from a movement of soil due to the absorption of moisture; that the house was built during a period of drouth and when the weather cycle changed the soil expanded with the moisture. The witness also testified that there was no settling either normal or abnormal, but that an expansion and upthrust of the soil produced the damage. The probable harm in this issue and definition as submitted it brought out rather clearly by Nelson's counsel in his agrument to the jury. He argued that even if the jury thought there was an upthrust or expansion there was no settling according to the insurer's own witness. He also contended that even if there was any expansion it was confined to the...
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...with the possibility of further extensive damage to [the] dwelling" [internal quotation marks omitted] ); Employers Mutual Casualty Co. v. Nelson , 361 S.W.2d 704, 709 (Tex. 1962) ("[w]e think the term [collapse] can be defined properly as a sinking, bulging, breaking or pulling away of the......
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