Gage v. Union Mut. Fire Ins. Co.
| Decision Date | 01 March 1961 |
| Docket Number | No. 973,973 |
| Citation | 169 A.2d 29,122 Vt. 246 |
| Parties | Terrance F. GAGE and Joyce Gage v. UNION MUTUAL FIRE INSURANCE COMPANY. |
| Court | Vermont Supreme Court |
Lee E. Emerson, Barton, for plaintiffs.
W. Edson McKee, Montpelier, for defendant.
Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.
The defendant was one of two insurers of a building owned by the plaintiffs. The policy insured against loss by fire and a number of other hazards named in the policy. It specifically provided:
In the plaintiffs' action on the policy the court below found in Finding No. 11: 'The damage to the property in question consisted of a buckled ceiling; the raising of the floor in the center of the cottage with the consequent splitting of the linoleum flooring; plumbing out of line and bent; the sill of the door dropped five inches from a level with the center of the floor; a splitting of the fireplace and a pulling away of the chimney of the fireplace from the building; and a movement of some of the cedar posts off from the cement footings.' The court went on to conclude in Finding No. 15: 'The damage to the building constituted a collapse or partial collapse.' From a judgment for the plaintiff, the defendant is here on appeal claiming error. It is the defendant's position that Finding No. 11 fails to disclose 'the collapse of the building(s) or any part thereof' within the meaning of the policy.
As a preliminary matter, the plaintiffs protest that the defendant's contention is not one proper for our consideration by reason of 12 V.S.A. § 1074. Under this provision, they point out, a general denial puts in issue only the execution of the policy and the amount of the damages. This is quite true. Shields et al. v. Vermont Mutual Fire Ins. Co., 102 Vt. 224, 244, 147 A. 352; 49 A.L.R.2d 167. The purpose of the act was to preclude a defendant from relying on a defense unless it was specifically pleaded. Poole v. Massachusetts Mutual Accident Association, 75 Vt. 85, 88, 53 A. 331. An examination of the defendant's answer discloses that it pleaded as follows: 'The company denies that any damage was caused to plaintiffs' buildings as alleged by reason of collapse and by weight of snow and ice.' Such an answer specifically directed the plaintiffs' attention to the defense claimed. An intention to contest the very issue before us was manifest. It was not a mere general denial. The plaintiffs' contention to that effect is not well founded.
We come now to the real question: Did the loss suffered by the plaintiffs constitute a 'collapse of the building(s) or any part thereof?' An answer to this question can only be found by interpreting the language of the policy and applying it to the facts found. What was the protection which it can fairly be said the policyholder purchased? It is this that he is entitled to receive.
In arriving at a determination of this sort, uncertainty in the significance of a term used in an insurance policy is to be resolved in favor of the insured and against the company. Griswold v. Metropolitan Life Insurance Co., 107 Vt. 367, 381, 180 A. 649. However, contracts of insurance, like other contracts, are to be construed according to the sense and meaning of the terms which the parties have used, and if they are clear and unambiguous, their terms are to be taken in their plain, ordinary, and popular sense. Johnson v. Hardware Mutual Casualty Co., 108 Vt. 269, 277, 187 A. 788. Certainly not every damage incurred with respect to a building can be said to be a 'collapse'. Thus, if a few shingles are blown from the roof--or for that matter, all of them--no one, for a moment, using language in its ordinary sense, would speak of a 'collapse' of a part of a building as having taken place. On the other hand, if the entire roof fell in, we have an occurrence which comes within the definition of the word 'collapse' as given by Webster: 'To fall together suddenly, as the two sides of a hollow vessel;' or that given in the Century Dictionary: 'To fall together or into an irregular mass or flattened form, through loss of firm connection or rigidity or support of the parts or loss of the contents, as a building through the falling in of its side, or an inflated bladder from the escape of the air contained in it.' It can not be said that the term 'collapse' does not carry with it a definite meaning denoting a specific sort of an occurrence with respect...
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