Government Emp. Ins. Co. v. DeJames

• Decision Date: 10 February 1970
• Docket Number: No. 199,199
• Citation: 256 Md. 717,261 A.2d 747
• Parties: GOVERNMENT EMPLOYEES INSURANCE COMPANY v. Joseph R. DeJAMES et al.
• Court: Maryland Court of Appeals

Page 717

256 Md. 717

261 A.2d 747

GOVERNMENT EMPLOYEES INSURANCE COMPANY v. Joseph R. DeJAMES et al.

No. 199.

Court of Appeals of Maryland.

Feb. 10, 1970.

Arthur V. King, Rockville, for appellant.

David B. Lamb, Washington, D.C. (George P. Lamb, Jr., Washington, D.C. on the brief), for appellees.

Before HAMMOND, C. J., and BARNES, McWILLIAMS, SINGLEY, SMITH and DIGGES, JJ.

SINGLEY, Judge.

This case, one of first impression in Maryland, poses the question of the meaning to be ascribed to the word 'collapse' in a homeowner's insurance policy.

In early 1965, Mr. and Mrs. Joseph R. DeJames moved into a new house near Beltsville in Prince George's County which they had purchased from Maryland Community Developers, Inc. (the Builder). The house was insured under a homeowner's policy issued by Government Employees Insurance Company (GEICO) for a term of three years, or until 31 January 1968, when the policy was renewed for an additional period of three years, expiring 31 January 1971.

Among the perils insured against by the policy was 'Collapse (not settling, cracking, shrinkage, bulging or expansion) of building(s) or any part thereof * * *', but the coverage was specifically subjected to two exclusions, relieving GEICO from liability '* * * for loss caused by, resulting from, contributed to or aggravated by any earth movement, including but not limited to earthquake, landslide, mud flow, earth sinking, rising or shifting * * *' as well as 'for loss caused by, resulting from, contributed to or aggravated by * * * water below the surface of the ground including that which exerts pressure on or flows, seeps or leaks through sidewalks driveways, foundations, walls, basement or other floors * * *.'

In October or November of 1965, the DeJameses noticed hairline cracks in the basement wall of the house, which the Builder repaired in February, 1966. In March of 1968, Mrs. DeJames heard a 'very loud, dull thud' which sounded like 'an explosion in the distance.' Mrs. DeJames testified that when she went to the basement later that day, she saw an 'indentation' near the floor of the basement wall, looked up and saw 'hundreds of thousands of cracks.' In response to a call the following day, the Builder erected a wooden framework to support the first floor joists and shored up the wall with timber supports.

When the Builder suggested that it would only make repairs of a nature unacceptable to the DeJameses, and GEICO denied liability under its policy, the DeJameses brought suit in the Circuit Court for Montgomery County against the Builder, alleging in their amended declaration breach of contract and fraud, and against GEICO, alleging breach of contract. The case came on for trial before a jury. The Builder's motion for a directed verdict, made at the end of the plaintiffs' case, was granted, relying on Allen v. Wilkinson, 250 Md. 395, 243 A.2d 515 (1968), ¹ and the absence of proof of fraud or fiduciary relationship. The case continued as to GEICO, and the jury returned a verdict against it for $4,155.80, on which judgment was entered.

Without challenging the amount of damages sustained by the DeJameses, GEICO grounds its appeal on three questions which we shall consider separately.

(i)

Was it error to permit the case to go to the jury, when the evidence showed that the wall did not collapse, but had merely cracked and bulged?

It is well settled that in interpreting insurance contracts, words are to be given their customary and normal meaning. State Farm Mut. Auto Ins. Co. v. Treas, 254 Md. 615, 255 A.2d 296 (1969); American Home Assurance Co. v. Erie Ins. Exchange, 252 Md. 116, 248 A.2d 887 (1969); Offutt v. Liberty Mut. Ins. Co., 251 Md. 262, 247 A.2d 272 (1968); Harleysville Mut. Cas. Co. v. Harris & Brooks, Inc., 248 Md. 148, 151, 235 A.2d 556 (1967), and cases there cited. Absent ambiguity the construction of the contract remains within the province of the court and Maryland has not adopted the rule, followed in many jurisdictions, that an insurance policy is to be most strongly construed against the insurer, American Cas. Co. of Reading, Pennsylvania v. Aetna Cas. & Surety Co., 251 Md. 677, 248 A.2d 487 (1968); Mateer v. Reliance Ins. Co., 247 Md. 643, 233 A.2d 797 (1967); Ebert v. Millers Mut. Fire Ins. Co., 220 Md. 602, 155 A.2d 484 (1959). If the language of an insurance contract is ambiguous, however, construction is for the jury, Ebert v. Millers Mut. Fire Ins. Co., supra, 220 Md. at 610, 155 A.2d 484; Eagle Star & British Dominions Ins. Co. v. Fleischman, 175 Md. 433, 2 A.2d 424 (1938); 22 Appleman, Insurance Law and Practice § 12853 (1947) at 7, and the ambiguity is to be resolved against the company which prepared the policy and in favor of the insured, American Cas. Co. of Reading, Pennsylvania v. Aetna Cas. & Surety Co., supra, 251 Md. at 684, 248 A.2d 487; Allstate Ins. Co. v. Humphrey, 246 Md. 492, 496, 229 A.2d 70 (1967).

Horatio Allison, a structural engineer, who testified for the DeJameses, described the condition of the wall:

'* * * We examined the inside and we found there was a horizontal crack at the first blocked house line (the first course of cinder blocks on the basement floor) and it extended, we estimated, two-thirds of the length of the rear wall; or at least at the point where the rupture was really discernible. Of course, you measure along the back, you can get many measurements about how much the wall had moved in, but we measured two inches in spots. And in one spot I was able to stick my hand all the way through the wall and feel the dirt on the other side of the wall.'

In response to a question, Allison said that he felt no free water or excessive moisture in the earth behind the wall.

When asked to characterize the condition of the wall, Allison said it had 'failed,' explaining that this was an engineering term meaning 'its condition was beyond any reasonable use,' that it could 'no longer usefully sustain a load,' that 'It certainly was unsafe,' that 'It would not be safe' if the wooden framework supporting the first floor joists and the shoring were removed, and that he 'would have to recommend that the house not be occupied.'

The only issue, of course, is what 'collapse' means in the context of the insurance policy. If the meaning is clear, as GEICO contends, the case should not have gone to the jury, but if it is ambiguous, it was a question for the jury.

While it is quite apparent that but for the wooden supports, the wall might have fallen in, it did not. It might well be argued that the DeJameses were compelled under the policy provision relating to mitigation of damages to erect the supports and to keep them in place. GEICO would have us say that as a matter of law the case should have been taken from the jury because 'collapse' means 'to break down completely: fall apart in confused disorganization: crumble into insignificance or nothingness: * * * to fall or shrink together abruptly and completely: fall into a jumbled or flattened mass through the force of external pressure: * * * to cave in, fall in, or give away: undergo ruin or destruction by or as if by falling down: * * *,' relying on the definition of 'collapse' as a verb which is found in Webster's Third International Dictionary (1941) at 443, which the court made available to the jury with the concurrence of counsel.

But when used as a noun as it was in the GEICO policy, the same dictionary gives 'collapse' a somewhat different connotation: 'a breakdown in * * * strength * * *: complete sudden enervation: sudden loss of accustomed abilities: * * * breakdown: sudden failure: disintegration, ruin, destruction: * * * sudden loss of force * * *.'

A possible explanation for this ambivalence can be found in the Oxford English Dictionary (1933). Until early in the eighteenth century, only the past participle of the verb, then used as an adjective, appeared in the English language, ² generally in medical, religious or political context. In 1755 the verb form appeared in Samuel Johnson's A Dictionary of the English Language. In the 1773 edition, the last which Johnson revised, it was defined:

'To collapse v. n. (collabor, collapsus Lat.) to fall together; to close so that one side touches the other. 'In consumptions and atrophy the liquids are exhausted, and the sides of the canals collapse; therefore the attrition is increased, and consequently the heat'-Arbuthnot on Diet (1732)'.

Johnson identified the noun form as 'collapsion,' which he defined as '1. the act of closing or collapsing. 2. the state of vessels closed.' Id. (1773, 1828 Sterotype Ed.) at 217.

Collapse appeared as a noun in the first part of the nineteenth century, and until a little more than a century ago, was found principally in the vocabulary of physiology and medicine. Although now in wider use, it has retained this flavor. The Oxford Dictionary, supra, defines 'collapse' when used as a noun:

'1. The action of collapsing or of failing or of suddenly shrinking together, breaking down giving way, etc., through external pressure or loss of rigidity or support; originally a term of physiology and medicine.'

'3. Failure, 'break-down' (of an institution, enterprise, established condition of things).' Id., (Vol. 2 at 613-14).

When GEICO argues that the wall did not collapse but merely cracked and bulged, it would have us apply to the noun the more restrictive connotation usually ascribed to the verb. This is the root of the ambiguity which made the meaning of the word a jury question.

There is, however, respectable support for GEICO's contention. The case was thoroughly briefed by counsel, and during argument before us, both sides agreed that a numerical majority of American jurisdictions takes the strict view that 'collapse,' when used as a noun in insurance contracts, means a complete change in structure, an impairment of structural integrity, or a loss of distinctive character or usefulness as a building. Higgins v....