Niagara Fire Ins. Co. v. Curtsinger

• Decision Date: 02 November 1962
• Citation: 361 S.W.2d 762
• Parties: NIAGARA FIRE INSURANCE COMPANY, Appellant, v. William CURTSINGER, Katherine Curtsinger, Brook Greer and the Peoples Bank, Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 762

361 S.W.2d 762

NIAGARA FIRE INSURANCE COMPANY, Appellant, v. William CURTSINGER, Katherine Curtsinger, Brook Greer and the Peoples Bank, Appellees.

Court of Appeals of Kentucky.

Nov. 2, 1962.

Percy Brown, Jr., Richard F. Newell, Ogden, Brown, Robertson & Marshall, Louisville, for appellant.

H. B. Kinsolving, Jr., H. B. Kinsolving III, Lucian Kinsolving, Shelbyville, James F. Thomas, New Castle, Edgar Sullivan, Gladys Williams, Taylorsville, for appellees.

STANLEY, Commissioner.

The appellant, Niagara Fire Insurance Company, on October 5, 1957, issued a general and comprehensive policy of insurance on a new dwelling of the appellees, William and Katherine Curtsinger, located in Taylorsville. Among other indemnities were those for direct loss or damage by 'Collapse of the building or any part thereof,' and by 'Landslide' (both with irrelevant exceptions). This action was brought to recover for damage to the property allegedly within those converages. The main issue in the case was and is whether there was a loss or damage to the building caused by either 'collapse' or 'landslide' or both. Contents of the building were also covered. The appeal is from a judgment for $3,109.50 rendered on a verdict.

The appellant contends it was entitled to a directed verdict because of failure of proof of loss within the coverages stated. It also contends that the trial court committed a number of errors in regard to the evidence and the instructions. We address ourselves first to the claim of a failure of proof.

The house, a one-story brick veneer, was built on a hillside. Considerable grading and filling of the lot were necessary. A screened porch was erected on the back of the house with a concrete floor a few inches above the land surface, which had been leveled off from the upsloping hillside. A ditch dug beyond the porch to carry off the downhill water apparently was not entirely sufficient. A carport was erected on the south side of the building on filled ground, which sloped away from the floor. About a week after the Curtsingers moved in the house, it began raining and continued for several weeks thereafter. There was unprecedented and excessive rainfall.

The recovery of the insurance was, in part, for what the appellees term a 'collapse' of the porch. The legal question is whether the undisputed facts evidenced a collapse within the meaning of the policy.

The appellees testified that during the evening of November 15, 1957, while in their living room, they heard a 'loud noise' and the next morning discovered the porch floor and roof had broken loose from the house, and the front 'had gone down about a foot.' Much evidence was introduced, pro and con, about whether the building had been properly constructed. The appellant contended that the foundation or piers, not only of the porch but of much of the entire structure, had been laid on filled earth, whereas proper construction required that the piers go down to solid ground. On this part of the case it seems to us that was immaterial. The contract was to pay indemnity for damage sustained by a 'collapse,' which is, of course, an occurrence or eventuality, irrespective of the cause. The insurance company took the building as it was for its contractual coverage.

Specific insurance against a collapse of a building or any part thereof is uncommon. Ordinarily, the term 'collapse of a building,' or similar condition, is contained in an exception from liability, or a condition subsequent, of a fire insurance policy; and in such cases it is generally held that the distinctive character as a building or a substantial part thereof must have been lost or damaged in order to bring the condition within the exception. Appleman, Insurance Law, § 3080.

The word 'collapse' in connection with a building or other structure has a well-understood common meaning. Webster's Collegiate dictionary defines the word as, '(1) To break down or go to pieces suddenly, especially by falling in of sides; to cave in.' A more elaborate judicial definition is given in 14 C.J.S. Collapse, p. 1316. Compare Spears v. Commonwealth, Ky., 256 S.W.2d 362.

In Skelly v. Fidelity & Casualty Co., 313 Pa. 202, 169 A. 78, a question was whether the insured person had sustained bodily injury 'in consequence of the collapse of the outer walls of a building while the assured is therein.' A runaway railroad car crashed into and tore a hole through the wall of the building, and the insured person was fatally injured. The plaintiff in the action on the policy maintained that the intention of the contract was to cover injury sustained by the falling of a substantial portion of the structural parts of the exterior walls of the building. The court expressed the view that this would extend the terms of the contract beyond what it provided, and in ordinary...