Messina v. Shelter Ins. Co., WD 82313

• Court: Court of Appeal of Missouri (US)
• Citation: 585 S.W.3d 839
• Docket Number: WD 82313
• Parties: Dominic MESSINA, Appellant, v. SHELTER INSURANCE COMPANY, Respondent.
• Decision Date: 08 October 2019

585 S.W.3d 839

Dominic MESSINA, Appellant,
v.
SHELTER INSURANCE COMPANY, Respondent.

WD 82313

Missouri Court of Appeals, Western District.

Filed: October 8, 2019

Joseph R. Borich, III, Leawood, KS for appellant.

Lawrence E. Nordling, David A. Gellis, Kansas City for respondent.

Before Division One: Cynthia L. Martin, P.J. and Alok Ahuja and Anthony Rex Gabbert, JJ.

Alok Ahuja, Judge

Dominic Messina insured his home with Shelter Mutual Insurance Company. The brick veneer on an exterior wall of Messina’s home collapsed, and he filed a property damage claim with Shelter. After Shelter denied the claim, Messina sued the insurer for breach of contract in the Circuit Court of Jackson County. The circuit court granted Shelter’s motion for summary judgment, and Messina appeals. Messina has conceded that one of the causes of the wall collapse was explicitly excluded from coverage under Shelter’s policy. Because the policy specifies that it does not provide coverage if any cause of loss or damage is excluded, Messina’s concession forecloses coverage for the wall collapse. We accordingly affirm the circuit court’s grant of summary judgment to Shelter.

Factual Background

Messina has owned and lived at the residence located at 501 Olive Street in Kansas City since approximately 1999. Messina acknowledged that the brick veneer on the south side of his home "was bulging out away from the wall ... since he bought the house."

In 2016, Shelter issued a homeowner’s insurance policy covering Messina’s residence for the policy period of May 29, 2016, to May 29, 2017.

On December 25, 2016, Messina returned home to discover that most of the brick veneer on the south side of his residence had collapsed into his driveway. A few weeks later, Messina contacted Mark Towner, a professional engineer, to determine the cause of the collapse. At his deposition, Towner testified he found pre-existing weakness and deterioration in the mortar of the south wall, which had developed over a period of years. In addition, Towner testified that metal connectors which were intended to hold the brick veneer to the wood sheathing behind it had corroded and rusted. Towner testified that the brick veneer wall collapsed as a result of a combination of factors, including: deterioration of the mortar; corrosion and rust of the metal nails holding the brick veneer to the wood sheathing; and the force of a wind suction or wind velocity event which occurred on the day of the collapse. Towner conceded that, but for the long-term deterioration of the mortar, and the corrosion or rusting of the metal connectors, the wind would not have caused the brick veneer to collapse on its own.

After Messina filed a claim for loss, Shelter hired its own engineer, Kevin Kirchmer, to inspect the collapsed wall. In his report, Kirchmer attributed the collapse of the brick veneer to long-term expansion

585 S.W.3d 842

and contraction of the wood sheathing, long-term corrosion of the brick nails, and a lack of maintenance. Kirchmer specifically concluded that the wall did not collapse because of the force of the wind.

Shelter denied Messina’s insurance claim. He then filed a breach of contract action against Shelter, seeking to recover the cost of the repair and replacement of the brick veneer. Messina alleged that the policy provided coverage because a wind event caused the collapse, and was a covered cause of loss.

Shelter moved for summary judgment on the basis that the uncontroverted facts showed that Messina’s claim did not involve an "accidental direct physical loss" covered by the policy, because the deterioration and bowing of the brick veneer had not occurred abruptly. Shelter also contended that, even if the loss fell within the definition of an "accidental direct physical loss," coverage was defeated by the policy’s exclusions.

The circuit court granted Shelter’s motion for summary judgment. Messina appeals.

Standard of Review

"Summary judgment shall be entered if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Wilmes v. Consumers Oil Co. of Maryville , 473 S.W.3d 705, 714 (Mo. App. W.D. 2015) (citing Rule 74.04(c)(6); internal quotation marks omitted). "This Court reviews a grant of summary judgment de novo. " Gall v. Steele , 547 S.W.3d 564, 567 (Mo. 2018) (citing ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp. , 854 S.W.2d 371, 376 (Mo. 1993) ). On appeal, "[w]e will affirm a grant of summary judgment if the decision is correct under any theory supported by the record developed below and presented on appeal." Medley v. Valentine Radford Commc'ns, Inc. , 173 S.W.3d 315, 319 (Mo. App. W.D. 2005) (citation and internal quotation marks omitted). The Court reviews the record "in the light most favorable to the party against whom judgment was entered," and gives the non-movant "the benefit of all reasonable inferences from the record." Id. (citing ITT Commercial , 854 S.W.2d at 376 ).

Analysis

Messina argues that the circuit court erred in granting summary judgment to Shelter. In his first Point, he argues that a genuine factual issue exists as to whether a wind velocity or wind suction event caused the collapse of the wall, and therefore whether the collapse was caused by an abrupt event and could be considered an "accidental direct physical loss." In his second Point, Messina argues that the Shelter policy’s exclusions cannot defeat coverage, because a genuine issue of fact exists as to whether the wall’s pre-existing, deteriorated condition was known or visible to him prior to the collapse. Because it is dispositive of this appeal, we address only Messina’s second Point.¹

"The general rule in interpreting insurance contracts is to give the language

585 S.W.3d 843

of the policy its plain meaning." Allen v. Cont'l W. Ins. Co. , 436 S.W.3d 548, 554 (Mo. 2014) (citing Gavan v. Bituminous Cas. Corp. , 242 S.W.3d 718, 720 (Mo. 2008) ). Any ambiguity in the language of the insurance policy is "resolve[d] ... against the insurer-drafter," while unambiguous policy language "must be enforced as written." Id. (citations omitted). "An ambiguity exists only if a phrase is reasonably open to different constructions." Doe Run Res. Corp. v. Am. Guarantee & Liab. Ins. , 531 S.W.3d 508, 511 (Mo. 2017) (citation and internal quotation marks omitted).

While the insured bears the burden of proving coverage under an insurance policy, the insurer bears the burden of showing that a policy exclusion precludes coverage for a particular loss. Truck Ins. Exch. v. Prairie Framing, LLC , 162 S.W.3d 64, 80 (Mo. App. W.D. 2005). Because "[a]n insured purchases coverage for protection," we will interpret the policy to "grant coverage rather than defeat it"; accordingly, "[w]e strictly construe exclusion clauses against an insurer." Id. at 86 (citations omitted). Although we strictly construe policy exclusions, the Missouri Supreme Court has emphasized that "[d]efinitions, exclusions, conditions and endorsements are necessary provisions in insurance policies. If they are clear and unambiguous within the context of...