Jones v. St. Paul Ins. Co.

• Decision Date: 11 December 1986
• Docket Number: No. 13-86-274-CV,13-86-274-CV
• Citation: 725 S.W.2d 291
• Parties: T.R. JONES, Appellant, v. The ST. PAUL INSURANCE COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 291

725 S.W.2d 291

T.R. JONES, Appellant, v. The ST. PAUL INSURANCE COMPANY, Appellee.

No. 13-86-274-CV.

Court of Appeals of Texas Corpus Christi.

Dec. 11, 1986.

On Rehearing Jan. 22, 1987.

B. R. Dossett, Jeffrey W. Jones, Johnson & Davis, Harlingen, for appellant.

Charles Hury, Atlas & Hall, McAllen, for appellee.

Before NYE, C.J., and KENNEDY and BENAVIDES, JJ.

OPINION

KENNEDY, Justice.

This is an appeal by T.R. Jones in a suit brought by him to recover under an insurance policy, after the roof of his commercial building fell in. Appellee, St. Paul Insurance Company, pleaded three specific exclusions in the policy: earth movement; inherent or latent defects; and settling, cracking, shrinking, bulging, or expansion of pavements, foundations, walls, floors, roofs, or ceilings. When both sides had concluded their presentation of evidence, the court submitted only the earth movement exclusion as "Question 1." Three other special issues inquired as to damages. No definition of earth movement was given by the court.

The jury answered Question 1, in handwriting, "Earth movement was a cause of the buildings (sic) collaspe (sic)." The jury also answered the damage issues, finding a net loss of $165,000 and attorney fees of $20,000 for the appellant. The court entered a take-nothing judgment in favor of appellee, apparently based on the jury's answer to Question 1.

Appellant raises eight points of error. Several complain of the manner in which the court submitted the case to the jury. Appellant also contends the court erred in denying his motions for judgment notwithstanding the verdict and for new trial. We will first consider the controlling issue in the case: whether the "earth movement" exclusion in the insurance policy was properly submitted to the jury.

In general, a contract will be construed as written, in order to give effect to the intent of the parties. Blaylock v. American Guarantee Bank Liability Insurance Co., 632 S.W.2d 719, 721 (Tex.1982); see R & P Enterprises v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 518 (Tex.1980); Maples v. Erck, 630 S.W.2d 488, 490 (Tex.App.--Corpus Christi 1982, writ ref'd n.r e.). An unambiguous contract will be construed as written, the writing alone indicating the parties' intent. Sun Oil Co. v. Madeley, 626 S.W.2d 726, 728 (Tex.1981). However, if the language of the insurance contract is ambiguous, that is, susceptible to more than one interpretation, we must adopt the construction urged by the insured. Glover v. National Insurance Underwriters, 545 S.W.2d 755, 761 (Tex.1977); Southern Farm Bureau Casualty Insurance Co. v. Adams, 570 S.W.2d 567, 570 (Tex.Civ.App.--Corpus Christi 1978, writ ref'd n.r.e.); see Hardware Dealers Mutual Insurance Co. v. Berglund, 393 S.W.2d 309, 314 (Tex.1965). This rule follows from the principle of strict construction against the insurer. Glover, 545 S.W.2d at 761; see Blaylock, 632 S.W.2d at 721.

Whether a contract term is ambiguous or unambiguous is a question of law. R & P Enterprises, 596 S.W.2d at 518; O'Shea v. Coronado Transmission Co., 656 S.W.2d 557, 561 (Tex.App.--Corpus Christi 1983, writ ref'd n.r.e.). Applying rules of construction to the language used in a contract is also the duty of the courts. Republic National Life Insurance Co. v. Spillars, 368 S.W.2d 92, 94 (Tex.1963); Life Insurance Co. of North America v. Spradlin, 526 S.W.2d 625, 628-29 (Tex.Civ.App.--Fort Worth 1975, writ ref'd n.r.e.). An issue of fact is created only if the proper interpretation remains uncertain after applying the pertinent rules of construction. Harris v. Rowe, 593 S.W.2d 303, 306 (Tex.1979); Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154, 157 (1951); Nixon v. First State Bank, 540 S.W.2d 817, 820-21 (Tex.Civ.App.--Corpus Christi), writ ref'd n.r.e. per curiam, 544 S.W.2d 378 (Tex.1976).

In appellant's third and fourth points of error, he contends that the trial court should not have submitted to the jury the issue of whether earth movement was a cause of appellant's loss. Instead, appellant contends, the court should have construed the exclusion relied on by appellee to be inapplicable where the only proof relating to earth movement was that the soil had contracted and expanded due to variations in its moisture content.

The applicable exclusion reads as follows:

This policy does not insure under this form against:

C. Loss caused by, resulting from, contributed to or aggravated by any of the following:

1. earth movement, including but not limited to earthquake, landslide, mudflow, earth sinking, earth rising or shifting.

We initially address appellant's contention that the doctrine of ejusdem generis limits the scope of the term "earth movement." Under that doctrine, where words of a specific and particular meaning are followed by general words, the general words are construed to mean only the class or category framed by the specific words. Stanford v. Butler, 142 Tex. 692, 181 S.W.2d 269, 272 (Tex.1944). In the exclusion before us, the opposite construction is used. The general words, earth movement, do not follow the specific words, but precede them. The doctrine of ejusdem generis does not apply in such a case. Anderson & Kerr Drilling Co. v. Bruhlmeyer, 134 Tex. 574, 136 S.W.2d 800, 804 (1940); Fleming Foundation v. Texaco, Inc., 337 S.W.2d 846, 852 (Tex.Civ.App.--Amarillo 1960, writ ref'd n.r.e.).

Appellant also contends that the term "earth movement" as used in the above exclusion does not embrace in its scope expansion and contraction due to soil moisture variations. Because the term is ambiguous as used, appellant argues, the rule that ambiguities in insurance contracts are construed in favor of the insured should render the exclusion inapplicable. Appellee, on the other hand, argues that "earth movement" is unambiguous, and its plain, ordinary meaning within the exclusion encompasses any motion of the earth, no matter how slight.

This is a case of first impression in this state. Other jurisdictions appear to be split. Appellee relies on Stewart v. Preferred Fire Insurance Co., 206 Kan. 247, 477 P.2d 966 (1970), and Nida v. State Farm Fire & Casualty Co., 454 So.2d 328 (La.App.1984). In Stewart, virtually the same exclusion was considered. The insurer had denied coverage after the insured house sank when an abandoned mine shaft below the house collapsed. The Kansas Supreme Court ruled that the "earth movement" exclusion expressly included "earth sinking" within its scope; therefore, coverage was properly denied. The court also found the language unambiguous; it therefore refused to apply the "strict construction against the insurer" rule of construction.

Nida is closer to the facts of our case. There, the insured suffered loss when the foundation of his home, built in unusually "active" Moreland clay soil, cracked because of pressure put on it by motion in the soil. As in the case before us, variations in the moisture content of the soil triggered the damage. Improper construction, as in this case, was also a contributing factor. The Nida court held that the loss was excluded by the insurance policy's "earth movement" provision. Since the term was not defined, the court said, it should be given its ordinary, nontechnical meaning. However, the concurring opinion in that case would have held that "earth movement" meant only "relocation" of earth, not mere contracting and swelling of the soil, but would have denied recovery based on an exclusion for "settling."

Interestingly, the Nida court did not distinguish Anderson v. Indiana Lumbermens Mutual Insurance Co., 127 So.2d 304 (La.App.1961). In that case, a different appellate court of Louisiana construed a narrower clause, which excluded loss caused by "earthquakes or other earth movements, except landslides." The court reversed an instructed verdict for the insurance company, saying that loss to a home caused by the expansion and contraction of soil was not excluded by the clause.

We find the Stewart case cited by appellee distinguishable on its facts. The earth clearly sank into the void left when the mine collapsed, and that occurrence fell squarely within the "earth sinking" exclusion. We also find that Nida does not control. While factually similar, the Nida case involves a much broader exclusion. The policy simply stated, "We do not cover loss resulting directly or indirectly from: 2. Earth Movement." Nida involved unusually active soil; it also appears to overlook, if not contradict, earlier authority in Louisiana, the Anderson case. Nida also appears to go against the majority of jurisdictions which have considered an "earth movement" exclusion.

In Wisconsin Builders, Inc. v. General Insurance Co. of America, 65 Wis.2d 91, 221 N.W.2d 832 (1974), an exclusionary clause almost identical to the one before us was considered in the context of a jury charge. The trial court had instructed the jury that "earth movement" meant "any movement of earth 'whether it be up, down or sideways.' " The Wisconsin Supreme Court held that this definition was too broad and reversed. The Wisconsin Builders holding was followed in Mattis v. State Farm Fire & Casualty Co., 118 Ill.App.3d 612, 73 Ill.Dec. 907, 454 N.E.2d 1156 (1983), in which another, almost identical exclusion was construed to be inapplicable in a situation where the basement wall of a building cracked inward about 3 1/2 inches due to "settlement and consolidation" of earth in the hill outside the wall. In Government Employees Insurance Co. v. De James, 256 Md. 717, 261 A.2d 747 (1970), the same exclusion was also held inapplicable by construing the clause to apply only to unusual movement of the types specified. See also Gullett v. St. Paul Fire & Marine Insurance Co., 446 F.2d 1100, 1103-04 (7th Cir.1971); United Nuclear Corp. v. Allendale Mutual Insurance Co., 103 N.M. 480, 709 P.2d 649, 652-53 (1985); Barash v. Insurance Co. of North America, 114 Misc.2d 325, 451 N.Y.S.2d 603,...