Krug v. Millers' Mut. Ins. Ass'n of Ill., 46285
| Decision Date | 08 April 1972 |
| Docket Number | No. 46285,46285 |
| Citation | 209 Kan. 111,495 P.2d 949 |
| Parties | Marvin E. KRUG, Appellant, v. MILLERS' MUTUAL INSURANCE ASSOCIATION OF ILLINOIS, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Where a policy of insurance insures the owner of a home against 'collapse,' but excludes coverage for 'settling, cracking, shrinkage, bulging or expansion,' the policy provision is not ambiguous and coverage for loss occasioned by the settling and cracking of the plaintiff's home is excluded.
2. Exceptions, limitations and exclusions to insuring agreements require a narrow construction on the theory that the insurer, having affirmatively expressed coverage through broad promises, assumes a duty to define any limitations on that coverage in clear and explicit terms.
3. Where an insurer attempts to avoid liability under an insurance policy on the ground that the loss for which recovery is sought is covered by some exclusionary clause, the burden is upon the insurer to prove the facts which bring the case within the specified exception.
Ivan D. Krug, LaCrosse, argued the cause and was on the brief for appellant.
H. Lee Turner, of Turner & Balloun, Chartered, Great Bend, argued the cause, and J. Eugene Balloun and Thomas C. Kelley, Great Bend, were with him on the brief for appellee.
This is an action on a homeowner's insurance policy to recover damages to the plaintiff's home resulting from a 'collapse' within the terms of the policy written by Millers' Mutual Insurance Association of Illinois (defendant-appellee). The trial court sustained a motion for summary judgment and appeal has been duly perfected.
The only issue is whether the contract of insurance issued by the defendant to the plaintiff covers the kind of damage the plaintiff claims he suffered.
The matter was determined by the trial court on the pleadings and the deposition testimony of the plaintiff. There is no dispute in the facts.
The plaintiff's residence home covered by the defendant's policy of insurance is connected to the city water system of LaCrosse, Kansas. The city water main runs under a street adjacent to the plaintiff's property, and his house is connected to the water main by pipes passing underground to the house. The water line goes through the foundation wall and is connected to the water system in the home. The ownership of the pipe from the city main to the house is in the plaintiff and the pipe is maintained by the plaintiff at his own expense.
In December, 1964, a water leak occurred in the plumbing system near the northwest corner of the plaintiff's home in the pipe leading from the city main to the home. The leak occurred at a point ten to fifteen feet from the side of the house. The water ran along the pipe to the foundation and concentrated beneath the ground at that point. Some of the water ran into the basement of the home. The plaintiff had the leak in his water line repaired within a reasonable time after it was discovered. Three or four months after the discovery of this leak the plaintiff noticed the east wall of his kitchen had separated from the ceiling. The soil around the house, saturated with the water from the leak, sagged from the weight of the house, creating the crack in the kitchen wall. The plaintiff made this discovery in his home shortly after he heard a noise that sounded like a shot.
The policy of insurance here in question was issued by the defendant and was in force at the time the water leakage took place and at the time the break was found in the kitchen wall of the plaintiff's home.
The plaintiff does not claim any direct loss from water leakage; but his claim consists entirely of a loss caused by the settling of his house that he claims was directly brought about by the water leakage in December, 1964.
The policy of insurance issued by the defendant insured the plaintiff against direct loss to the property covered on nineteen different perils which are listed in the policy.
Peril No. 14 reads in part:
Peril No. 15 reads in part:
The policy contains certain exclusions to perils Nos. 14 and 15, which read as follows:
'C. Special Exclusions
'This Company shall not be liable:
'(a) as respects Perils . . . 14, 15, . . . for loss caused directly or indirectly by earthquake, volcanic eruption, landslide or other movement:
'(b) as respects Perils . . . 14, 15, . . . for loss caused by, resulting from, contributed to or aggravated by any of the following:
'(1) flood, surface water, waves, tidal wave, overflow of streams or other bodies of water, or spray from any of the foregoing, all whether driven by wind or not;
'(2) water which backs up through sewers or drains;
'(3) 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, or through doors, windows or any other openings in such sidewalks, driveways, foundations, walls or floors;
unless loss by fire or explosions ensues, and this Company shall then be liable only for such ensuing loss; but these exclusions do not apply to loss by theft;' (Emphasis added.)
The trial court found there was no coverage in favor of the plaintiff under the policy for cracking and settling of his house that might be caused from water that escaped from the broken water line. It found peril No. 14 set forth in the insurance policy specifically excludes 'settling, cracking, shrinkage, bulging or expansion' of buildings. It thereupon concluded the defendant's motion for summary judgment should be sustained and it entered an order accordingly.
The term 'collapse' in a fire insurance policy was treated by this court in Jenkins v. United States Fire Ins. Co., 185 Kan. 665, 347 P.2d 417. There the appellant was insured under a policy against all direct loss to the property caused by 'collapse of building(s) or any part thereof.' (p. 667, 347 P.2d p. 418.) The insurance company urged that the word 'collapse' was unambiguous and should be construed according to its dictionary interpretation; that there was no coverage under the 'collapse' clause of the policy until the basement walls fell into a flattened, wrecked or distorted state. The court, however, disagreed with the insurance company's position and thought the term 'collapse' was ambiguous. In the opinion the court said:
'. . . we believe the clause 'collapse of building or any part thereof' as used in the involved insurance contract is to be interpreted as comprehending that, if brought about by unusual and extraordinary circumstances which the parties to that agreement could not normally expect or foresee on the date of its execution, the settling, falling, cracking, bulging or breaking of the insured building or any part thereof in such manner as to materially impair the basic structure or substantial integrity of the building is to be regarded as a 'collapse' of the building within the meaning of that word as used in such clause of the policy.' (pp. 671, 672, 347 P.2d pp. 422, 423.)
The language of the policy considered in the Jenkins case did not qualify the term 'collapse' in any way. To counter the ambiguity which courts found in the use of the word by itself, insurance companies thereafter drafted new policies that covered 'collapse' but did not cover 'settling, cracking, shrinkage, bulging or expansion' until collapse ensued.
In Allen v. Hartford Fire Ins. Co., 187 Kan. 728, 359 P.2d 829, this court followed the decision in Jenkins and affirmed a jury's verdict against the insurance company in a case involving policy language similar to that in the Jenkins case. But our court has not yet considered the new policy language here presented. (See Stewart v. Preferred Fire Ins. Co., 206 Kan. 247, 250, 477 P.2d 966.)
The appellant contends the term 'collapse' used in the policy here in question is ambiguous. It is argued the primary requirement for collapse is abruptness, which is clearly present in the case at bar, because it happened suddenly without any prior warning or knowledge on the plaintiff's part. The appellant urges that the 'settling' and 'cracking' excluded in peril No. 14 should be thought of in the normal everyday sense in which these words are used-that houses normally settle with age and this causes small hairlike cracks in walls and ceilings. It is argued the public would so construe these two words of exclusion (citing Casey v. Aetna Casualty & Surety Co., 205 Kan. 495, 470 P.2d 821.)
The plaintiff urges the proper construction of the two words of exclusion, 'settling' and 'cracking,' refer only to normal settling and cracking. In this connection he quotes 13 Couch on Insurance 2d § 48:175 as follows:
'. . . Included within the concept of normal settling, shrinking, or expansion are not only those forces which are constantly and habitually operating, but also those ordinary forces which operate periodically or within a certain degree of frequency.' (pp. 612, 613.)
The foregoing quotation is prefaced in Couch with the statement that a comprehensive dwelling policy will generally exclude liability for 'normal settling, shrinking, or expansion of foundations, walls, floors, and ceilings.'
Upon the foregoing the appellant contends the water leakage here was clearly not an ordinary force and it does not occur periodically; that the loss here was caused by a more severe and abrupt event that sounded like a shot. It is urged that whether the loss was caused by normal settling and cracking, or by water, is a jury question and not one to be decided on summary judgment.
The authorities are not all in agreement as to whether the new policy language involved in this appeal is...
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