O'Meara v. American States Ins. Co., 270A17

• Decision Date: 08 April 1971
• Docket Number: No. 1,No. 270A17,270A17,1
• Citation: 268 N.E.2d 109,148 Ind.App. 563,25 Ind.Dec. 261
• Court: Indiana Appellate Court
• Parties: Jean C. O'MEARA, Appellant, v. AMERICAN STATES INSURANCE COMPANY, Appellee

Page 109

268 N.E.2d 109

148 Ind.App. 563

Jean C. O'MEARA, Appellant, v. AMERICAN STATES INSURANCE COMPANY, Appellee.

No. 270A17.

Appellate Court of Indiana, Division No. 1.

April 8, 1971.

Rehearing Denied May 12, 1971.

Robert J. Konopa, South Bend, for appellant; Crumpacker, May, Levy & Searer, South Bend, of counsel.

Franklin A. Morse, II, South Bend, for appellee; Thornburg, McGill, Deahl, Harman, Carey & Murray, South Bend, of counsel.

ROBERTSON, Judge.

This case is from the St. Joseph Superior Court, in which the court denied the plaintiff-appellant's motion for summary judgment and granted the defendant-appellee's motion for summary judgment, thereby giving rise to this appeal.

The plaintiff-appellant and her husband are the owners of certain residential real estate which faces upon the St. Joseph River in South Bend, Indiana. Along that part of the property bordering the river, appellant maintained a rock wall which protruded three to four feet above the water's surface, and to an undisclosed depth below. In early May, 1967, appellant notified the appellee insurance company of the need to repair the wall based on the fact that increased power boat activity on the river and the resulting agitation of the water damaged the wall to the extent repairs were required. The insurance company denied liability under an exclusionary clause contained in the homeowners policy then in effect between the parties, stating losses not insured included:

'* * * (c) caused by, resulting from, contributed to or aggravated by any of the following:

'* * * (1) floods, surface waters, waves, tidal waves, overflow of streams or other bodies of water, or spray from any of the foregoing, all whether driven by the wind or not; * * *

'* * * (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; * * *

'(g) to fences, pavements, patios, swimming pools, foundations, retaining walls, bulkheads, piers, wharves or docks, and such losses caused by freezing, thawing, or by the pressure of weight of ice or water whether driven by wind or not * * *'

Appellant proceeded to have the wall repaired at a cost of Ten Hundred Seventy-five Dollars ($1075), and after appellee again maintained it had no liability, suit was filed. The complaint alleged, among other things, ownership of the real property, the insurance policy being in force, coverage of the damage, and compliance with conditions and requirements of the policy, the loss and damages to the wall. The insurance company filed its answer denying inter alia, coverage, the amount of damages, and that the insured had performed the conditions precedent. After completion of discovery, cross motions for summary judgment were filed, with the trial court overruling plaintiff-appellant's motion and sustaining the motion of defendant-appellee with a finding: 'And now the court finds that the insurance policy of the defendant does not cover the alleged loss of the plaintiff'.

The appellant's assignment of errors consist of the following:

1. The court erred in overruling appellant's motion for summary judgment.

2. The court erred in granting appellee's motion for summary judgment.

In view of the result we have reached we will consider only Specification #2 of appellant's assignment of error.

Since appellee chose to rely solely on Special Exclusion (c)(1) in its motion for summary judgment and memorandum in support thereof, the sole issue before this court is whether or not the loss sustained by appellant is excluded from coverage under Special Exclusion (c)(1).

Appellant has put forth the argument that Special Exclusion (c)(1) does not clearly encompass her loss, and must therefore be construed against the insurer and in favor of coverage. As appellant correctly states, it is a well established rule of law, and one which has been invoked by the courts in this state on numerous occasions, that where an insurance contract is ambiguous so as to be susceptible of more than one interpretation, the court will adopt the construction most favorable to the insured. United States Fidelity and Guaranty Co. v. Baugh (1970), Ind., 257 N.E.2d 699. State Security Life Ins. Co. v. Kintner (1962), 243 Ind. 331, 185 N.E.2d 527. Masonic Acc. Ins. Co. v. Jackson (1929), 200 Ind. 472, 164 N.E. 628.

Accordingly the test to be applied in ascertaining the ambiguity, or lack thereof, of the insurance contract before this court, is whether or not it is susceptible of more than one interpretation. Furthermore, in order to constitute ambiguity so as to be susceptible of more than one interpretation, it must be shown that reasonably intelligent men on reading the insurance contract would honestly differ as to its meaning. Masonic, supra. This, however, does not mean that because controversy exists and a party asserts one interpretation, while the other denies it, that ambiguity has affirmatively been shown to exist. American National Bank v. Service Life Ins. Co. (1941), 120 F.2d 579; certiorari denied 314 U.S. 654, 62 S.Ct. 104, 86 L.Ed. 524.

Appellant herein seeks to establish the ambiguity of her homeowners insurance policy by alleging the failure of Special Exclusion (c)(1) to clearly set out, and thereby exclude from appellee's liability, the loss which she sustained. It has been stipulated by the parties to this appeal that the damage to appellant's seawall was caused by the agitated water flowing from and behind passing motorboats. Indeed, Special Exclusion (c)(1) does not specifically exclude from coverage damage to a seawall caused by passing motorboats. However, it does exclude damage 'caused by, resulting from, contributed to or aggravated by, * * * waves * * * whether driven by the wind or not; * * *.'

Appellant contends that the agitated water flowing from and behind passing motorboats does not constitute waves, but rather is properly termed as the wake or wash of a vessel and hence is outside the scope of (c)(1). Appellee, on the other hand, has presented a barrage of dictionary definitions and literary phrases in support of its position that 'wave' is the general word for any ridge, swell, or undulation, on the surface of water irrespective of its source of motivation. While the merit of appellant's contention...