J. L. Simmons Co. v. Lumbermens Mut. Ins. Co.

• Decision Date: 23 May 1967
• Docket Number: Gen. No. 51223
• Citation: 228 N.E.2d 227,33 A.L.R.3d 1254,84 Ill.App.2d 98
• Parties: , 33 A.L.R.3d 1254 J. L. SIMMONS COMPANY, a Corporation, Plaintiff-Appellant, v. LUMBERMENS MUTUAL INSURANCE COMPANY, a Corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 227

228 N.E.2d 227

84 Ill.App.2d 98, 33 A.L.R.3d 1254

J. L. SIMMONS COMPANY, a Corporation, Plaintiff-Appellant, v. LUMBERMENS MUTUAL INSURANCE COMPANY, a Corporation,

Defendant-Appellee.

Gen. No. 51223.

Appellate Court of Illinois, First District, Second Division.

May 23, 1967.

Ruff & Grotefeld, Campbell, Clithero, Fischer & Guy, Chicago, John E. Guy, David H. Pauker, Chicago, for appellant.

Peterson, Lowry, Rall, Barber & Ross, Chicago, Abe R. Peterson, Harold W. Huff, Herbert C. Loth, Jr., Chicago, of counsel, for appellee.

LYONS, Presiding Justice.

This is an appeal from the entry of a judgment in a bench trial against the plaintiff-appellant, J. L. Simmons Company, at the close of its case. Subsequent to the entry of such judgment, plaintiff made a motion to vacate the judgment, or in the alternative, to grant a new trial, which motion was denied and from which this appeal is taken.

Plaintiff's cause was founded exclusively upon the terms of a contract of liability insurance it held as the insured with the defendant-appellee, Lumbermens Mutual Insurance Company. The effective dates of the policy in question were July 1, 1955 to July 1, 1956. Plaintiff is a construction company and was in the month of October, 1955, engaged in the excavation of certain land owned by the Illinois Farm Supply Company (hereinafter referred to as Illinois Farm) in Springfield, Illinois. On October 5th and 6th, 1955, an unseasonably large quantity of rain fell in the Springfield area. Due to the rain, unanticipated underground hydrostatic pressures developed which began to buckle the existing shoring in the excavation. The walls of the excavation threatened to collapse and thereby place a warehouse structure on the immediately adjoining property in imminent peril. The adjoining property and structure were also owned by Illinois Farm.

During the course of the rainfall, plaintiff's insurance manager, Mr. Fusch, telephoned defendant's salesman, Mr. O'Rear, to inform him of the emergency situation. Defendant's agent, upon learning of the impending collapse, told Fusch to keep him advised, but otherwise took no affirmative action. Thereafter, plaintiff proceeded to secure and install emergency bracing against the pilings which had theretofore been in place. The preventative reinforcing measure successfully provided the lateral support needed to withstand the increased pressure. The adjacent subsoil beneath the warehouse did not collapse, although some settling and cracking damage to that structure did result.

Plaintiff maintains that it incurred, at cost and without a profit, approximately $13,000 in expenses to secure and erect the additional bracing, as well as $5,000 in expenses to repair the damage to the warehouse. Defendant argues that the evidence offered failed to sustain plaintiff's allegation of expenditures. Plaintiff concedes, that while the exact amount of damage is disputed, some damage has nonetheless been established by the evidence. Illinois Farm has never instituted a claim against plaintiff relative to this occurrence. Written notice of plaintiff's claim for reimbursement was not sent to defendant until October 3, 1956, almost a year after the events which gave rise to this cause of action.

Plaintiff contends defendant was and is obligated to reimburse it for such sums so expended pursuant to the terms of their contract of insurance. Plaintiff attached a copy of the contract to its complaint. Defendant admits the existence of the policy but denies liability on the basis of the contract's express language.

It is plaintiff's sole theory of the case that as an excavator it owed an absolute duty to the adjoining property owner not to remove its property's lateral and subjacent support. This absolute duty having been shown to exist, plaintiff maintains that the monies expended by it represented a sum which it was legally obligated to pay as damages within the meaning of the contract of insurance.

It is defendant's theory of the case (1) that plaintiff has failed to show that it became legally obligated to pay damages within the meaning of the policy's coverage, (2) that plaintiff has failed to comply with conditions 8 and 11 of said policy, and (3) that plaintiff's claim is excluded as a basis of liability by Endorsement K of the policy.

The insurance contract was amended by at least eighteen subsequent endorsements which each recite the same effective dates as that of the parent policy. While numerous provisions of both the parent policy and its subsequent endorsements have been called into question, we are of the opinion that only the following clauses are applicable to the disposition of this appeal, to wit:

Coverage B--Property Damage Liability

To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident.

Condition 8--Notice of Accident

When an accident occurs written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable.

Condition 11--Action Against Company

No action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy, nor until the amount of the insured's obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant, and the company.

Endorsement K--Exclusion of Property Damage Liability

* * * such insurance as is afforded by the policy for property damage liability * * * does not apply to * * * (2) the collapse of or structural injury to any building or structure due (a) to excavation, * * *.

Endorsement 11--Property Damage Liability

In consideration of an additional premium to be computed as herein provided, it is agreed that Comprehensive Endorsement K and Comprehensive Endorsement N do not apply, * * *.

After the close of plaintiff's case, defendant made a motion for judgment in its favor as a matter of law. The trial judge, in granting such motion, stated:

* * * assuming that all of the conditions and proper notice was given under the endorsement, * * * what are the obligations of the parties?

* * * in my opinion, the obligation of the defendant is as I read it under Coverage B of the Insuring Agreement, and that being the obligation of the defendant, it is my opinion in this case that the plaintiff has not and is not in a position that he can say that he became legally obligated to pay these damages, and, therefore, it is my opinion that he cannot recover under this policy.

Relative to the issues of (1) amount of damages, (2) the timeliness of plaintiff's notice to defendant, and (3) the applicability or inapplicability of Endorsement K's exclusion of damage resulting from excavation in light of Endorsement 11, this court renders no opinion. Notwithstanding such issues, we concur with the trial judge in that the plaintiff failed in its case to establish that it expended sums which, under the law, it was obligated to pay within the language and intent of Coverage B of the policy.

Plaintiff voices strenuous objection to the trial judge's determination of its cause as a matter of law. Plaintiff points out, and we agree, that since defendant's motion challenged the legal sufficiency of the action, the evidence thus far presented together with all its reasonable intendments should be construed in a light most favorable to plaintiff. Should there be any evidence, which standing alone supports the claim, the judgment must be reversed.

Plaintiff relies on three cases as authority for its theory that an excavator is under an absolute duty to adjoining landowners. These cases are City of Quincy v. Jones et al., 76 Ill. 231 (1875), Schroeder v. City of Joliet, 189 Ill. 48, 59 N.E. 550, 52 L.R.A. 634 (1901) and People ex rel. Hepburn v. Maddox, 340 Ill.App. 34, 91 N.E.2d 107 (1950).

The Quincy case establishes no such absolute duty of care. To the contrary, the case promulgates simply a duty of reasonable care taking into consideration all of the attendant circumstances. The duty was aptly considered a question of fact for a jury. Absent a violation of such a duty, the court said there could be no recovery. The Quincy decision goes even further in qualifying this duty of care. The court there held that an adjoining landowner's right to lateral support extends only to his soil as it exists in its natural state, and not to the support needed as a consequence of the additional weight of a building erected thereon.

In the case of Exchange National Bank of Chicago v. Code, 23 Ill.App.2d 382, 163 N.E.2d 554 (1959), this court adopted and followed the position taken in Quincy thereby refuting any arguments for the establishment of an absolute duty of care. We said:

The excavating owner owes no duty to the adjoining...