Olmstead v. Lumbermens Mut. Ins. Co.

• Decision Date: 27 May 1970
• Docket Number: No. 69-343,69-343
• Parties: , 51 O.O.2d 285 OLMSTEAD, Trustee, et al., Appellants, v. The LUMBERMENS MUTUAL INS. CO., Appellee.
• Court: Ohio Supreme Court

Page 212

22 Ohio St.2d 212

259 N.E.2d 123, 51 O.O.2d 285

OLMSTEAD, Trustee, et al., Appellants, v. The LUMBERMENS MUTUAL INS. CO., Appellee.

No. 69-343.

Supreme Court of Ohio.

May 27, 1970.

Syllabus by the Court

1. In an action upon a policy of insurance, where a contractual term is not otherwise defined in the contract, and where no evidence is introduced to show the intended meaning of the term, it is error for a court, upon request, to refuse to instruct the jury as to the plain, ordinary meaning of the term.

2. Where nothing in a written insurance contract shows a contrary intent of the parties, the word 'collapse,' as used in a policy of insurance, must be read in its common ordinary meaning.

3. The common everyday meaning of 'collapse of a structure' is a falling down, falling together, or a caving into an unorganized mass.

4. The common ordinary meaning of the word 'landslide' is a sliding down of a mass of soil or rock on a steep slope.

Plaintiff Olmstead is trustee of a trust which owned a parcel of real estate, including a complex of buildings. Plaintiff Teasdale Cleaners, Inc., leased the real property from the trust. The defendant, The Lumbermens Mutual Insurance Company, issued a policy of insurance, with both plaintiffs listed therein as named insureds.

In July 1964, the owner of the property immediately adjacent to that of plaintiffs began excavating ground for building purposes. The excavation caused the land beneath plaintiffs' property to dry out, settle and shift on three different occasions, in August 1964, in December 1964, and in June 1965. This movement of the land led to a shifting of plaintiffs' buildings, causing the walls, masonry and floor slabs to crack, one wall to bow, and the roof to sag. The moves of the buildings, however, did not cause any part of the walls or buildings to fall down or disintegrate nor was any of Teasdale's machinery damaged. ¹

Although the evidence conflicts concerning whether or not the buildings could have been repaired, the evidence is clear that Teasdale continued to occupy the premises until December 1964 without loss of business. The city of Cincinnati Building Commissioner, by letter, directed that the building be kept vacant of all human occupancy after December 9, 1964. On November 9, 1964, the building commissioner concluded that the entire building should be razed. It also appeals that the parties have agreed that the cause of the damage to the building was the excavation on the adjoining property.

Plaintiff Olmstead sued to recover for damages caused to the building, while Teasdale sued to recover for loss and damage to the plant and equipment and the cost incurred when forced to vacate the building and move to another location. Plaintiffs contend that the insurance policy issued by defendant to plaintiffs provided coverage for the alleged damages described hereinabove. Defendant denies coverage.

The pertinent policy language reads as follows:

'II. Coverage

'Perils Insured Against

'This section of the policy insures against all direct loss to the property caused by:

'* * *

'9. Collapse: Loss by collapse shall mean only the collapse of the building(s) or any part thereof. * * *

'* * *

'13. Landslide: This company shall not be liable as respects this peril for loss to outdoor equipment, fences, retaining walls not constituting a part of a building covered, driveways, walks, except as a direct result of the collapse of a building(s).

'* * *

'III. Exclusions

'* * *

'Earthquake exclusion: This company shall not be liable for loss caused by, contributed to, or aggravated by earthquake, landslide (except as provided in this form), or any other earth movement or settling, however caused, unless loss by fire or explosion ensues, and this company shall then be liable only for such ensuing loss.'

At trial, a special charge containing a definition of 'collapse' presented by defendant was refused. There is no explanation of the meaning of 'collapse' in the court's general charge.

A verdict was returned for both plaintiffs. Defense motions for new trials and judgment notwithstanding the verdict were overruled. The overruling of the motion for new trial as to Teasdale was conditioned upon Teasdale accepting a remittitur in damages. The remittitur was not accepted and judgment was entered on the verdict with a new trial granted defendant as to Teasdale Cleaners.

Defendant appealed to the Court of Appeals and plaintiff, Teasdale, filed a cross-appeal. The Court of Appeals reversed the judgment of the Court of Common Pleas and entered final judgment for the defendant as to both plaintiffs. The court held, in essence, that plaintiffs' evidence given its most favorable consideration, failed to prove that the Olmstead building did fall, Shrink, flatten in a distorted mass, break down, cave in, disintegrate, break into pieces, or lose its character or integrity as a building.

The cause is here pursuant to the allowance of a motion to certify the record.

Goodman & Goodman, and Sol Goodman, Cincinnati, for appellants.

Clausen, Hirsh, Miller, & Gorman, Jacob T. Pincus, Chicago, Ill., Lindhorst & Dreidame, and James L. O'Connell, Cincinnati, for appellee.

DUNCAN, Justice.

In argument and in brief counsel discuss and invite our attention to certain clauses of the insurance contract which spawn a number of barriers which must be hurdled by one in search of the intent of the parties. In the case at bar, only one is pivotal, i. g., what is a 'collapse.'

Plaintiffs urge that the word 'collapse' is reasonably open to different interpretations and requires construction most favorable to the insureds and against the insurer or creator of the language. Mumaw v. Western & Southern Life Ins. Co., 97 Ohio St. 1, 119 N.E. 132, paragraph one of the syllabus; Great American Mut. Indem. Co. v. Jones, 111 Ohio St. 84, 144 N.E. 596, paragraph one of the syllabus; Toms v. Hartford Fire Ins. Co., 146 Ohio St. 39, 63 N.E.2d 909, paragraph one of the syllabus; Munchick v. Fidelity & Cas. Co. of N. Y., 2 Ohio St.2d 303, 209 N.E.2d 167, paragraph one of the syllabus. Defendant counters by arguing that the meaning of the word 'collapse' is unambiguous and that it should be given its common and usual meaning. Morgan v. Boyer, 39 Ohio St. 324 (paragraph three of the syllabus); Fidelity & Cas. Co. of N. Y. v. Hartzell Bros., 109 Ohio St. 566, 143 N.E. 137; First Nat. Bank of Van Wert v. Houtzer, 96 Ohio St. 404, 117 N.E. 383.

Some courts have liberally defined 'collapse' to mean damage materially impairing the basic structure or integrity of a building or making parts thereof incapable of fulfilling their intended function. See, e. g., Morton v. Great American Ins. Co., 77 N.M. 35, 419 P.2d 239; Travelers Fire Ins. Co. v. Whaley, 272 F.2d 288. Compare Bradish v. British American Assur. Co., 9 Wis.2d 601, 101 N.W.2d 814, with Thornewell v. Indiana Lumbermans Mut. Ins. Co., 33 Wis.2d 344, 147 N.W.2d 317. A numerical majority of other jurisdictions, and the Court of Appeals in the instant case, have held that the word 'collapse' has a plain and natural dictionary meaning, which they follow. See, e. g., Higgins v. Connecticut Fire Ins. Co., 163 Colo. 292, 430 P.2d 479; Central Mut. Ins. Co. v. Royal, 269 Ala. 372, 113 So.2d 680, 72 A.L.R.2d 1283; Skelly v. Fidelity & Cas. Co., 313 Pa. 202, 169 A. 78; Niagara Fire Ins. Co. v. Curtsinger (Ky.), 361 S.W.2d 762; Gage v. Union Mut. Fire Ins. Co., 122 Vt. 246, 169 A.2d 29.

We fail to see any ambiguity in the word 'collapse.' That word, in its plain, common and ordinary sense, means a failling down, failling together, or caving into an unorganized mass. When...