Sabella v. Wisler

• Decision Date: 17 January 1963
• Court: California Supreme Court
• Parties: , 377 P.2d 889 Luciano A. SABELLA et al., Plaintiffs and Appellants, v. J. W. WISLER, Defendant and Appellant; National Union Fire Insurance Company, Defendant and Respondent. S. F. 21146

Page 689

27 Cal.Rptr. 689

59 Cal.2d 21, 377 P.2d 889

Luciano A. SABELLA et al., Plaintiffs and Appellants, v. J. W. WISLER, Defendant and Appellant;

National Union Fire Insurance Company, Defendant and Respondent.

S. F. 21146.

Supreme Court of California

Jan. 17, 1963.

Carter, Terreo & O'Connell and Loyd W. Carter, San Francisco, for plaintiffs and appellants.

Bagshaw, Schaal, Martinelli, Weissich & Jordan and A. E. Bagshaw, San Rafael, for defendant and appellant.

Thornton & Taylor and Jerome F. Downs, San Francisco, for defendant and respondent.

WHITE, Justice pro tem.

Defendant J. W. Wisler, the builder of a home found to have been negligently constructed upon an improperly compacted lot, appeals from a judgment in the amount of $8,200 in favor of plaintiff-owners Luciano and Diane Sabella for extensive damages sustained to their home as a result of subsidence of the supportive and nearby earth. The Sabellas appeal from that portion of the judgment decreeing that defendant National Union Fire Insurance Company, which had issued an 'all physical loss' policy upon their home excluding coverage for loss by 'settling, cracking, shrinkage * * * (unless loss by collapse ensues)', was exempt from liability under the policy because plaintiffs' loss was caused by 'settling' within the meaning of the above exception to the insurance coverage. The judgment roll, plus the exhibits presented to the trial court, constitutes the record herein.

It appears from the findings of the court below, which may not be controverted on this judgment roll appeal (White v. Jones, 136 Cal.App.2d 567, 569, 288 P.2d 913), that the factual background surrounding this litigation is as follows: Prior to 1953 or 1954 there existed in San Anselmo, Marin County, a quarry site at the base of a rock cliff wherein 'a substantial pit had been excavated.' During the rainy season this pit accumulated rain and surface water and was used by children as a swimming and wading pond. The pit was also used over the years by individuals in the neighborhood as a dumping place for 'tree trimmings and cuttings and other similar waste matter.'

In the year prior to February 1954, a general contracting firm filled the pit with nearby dirt and rock outcroppings pushed into the hole by earthmoving machinery. The accumulation of 'tree cuttings and other waste material' was not removed but merely covered over. Nor was the fill material pushed into the pit specifically compacted or consolidated except as the weight of the earthmoving machinery did so in the process of filling. The land was then substantially level and, since located at the base of a substantial rock cliff, did not appear, superficially, to be filled land.

Defendant Wisler, an experienced home builder and contractor in Marin County, purchased the parcel of land from the general contracting firm in February 1954. Although he constructed a house thereon, according to findings of the trial court 'at no time, either before beginning construction of said house or during its construction, did defendant WISLER take any steps whatsover to inform himself of the nature, composition or quality of the earth upon which said house was being built.' Nor did he attempt 'to inform himself whether the earth beneath the house he was building would support the weight of said house.'

The construction of the house was undertaken without soil inspection 'personally and through (Wisler's) agents, servants and employees,' notwithstanding that the home was built 'for the purpose and with the intent of offering said house, when completed, for sale to the public generally.' The trial court further found that 'inquiry would have readily disclosed that said building site was actually, in part, on filled land,' and that 'soil tests, made by competent soil engineers, would have disclosed that said land was unfit for a building site because of the lack of compaction.'

It was found that the appearance of the land at the time it was purchased by Wisler was not such that 'reasonably prudent persons' in his position would have been 'alerted to the existence of fill material in the site.' But in the course of construction Wisler 'personally and also through one of his employees acting within the course and scope of his employment, excavated physically through and into the unstable and unsuitable earth to a depth of approximately 18 to 24 inches for the purpose of preparing foundation footings for said house.' It was found 'that a reasonably prudent person under like or similar circumstances and as a result of making said excavations for foundation footings would have discovered' the insufficient compaction of the underlying earth material, and 'would have caused soil tests and investigations to be made before proceeding with the building.' The trial court specifically found that Wisler 'negligently failed to discover or notice the unsuitable nature of said ground and failed to cause such tests or investigations to be made.'

The house was completed prior to September 1955, and offered for sale to the public. It was not in any way built especially for the plaintiffs herein. The Sabellas moved in to the house in October 1955. No questions are instantly presented concerning any representations made to plaintiffs during the purchase transactions.

It appears that there were heavy rains during the early winter of 1955-1956, sufficient to cause a large quantity of earth and rock to break away from the rock cliff which rises immediately out of plaintiffs' rear lot area, and slide into their backyard and patio. However, apparently no appreciable earth failure or damage to the house from subsidence occurred that winter, or during the rainy seasons 1956-1957 or 1957-1958.

In May 1957 defendant National Union Fire Insurance Company issued to the Sabellas a fire insurance policy containing an "All Physical Loss' Building Endorsement.' National Union thereby agreed to insure the house 'against all risks of physical loss except as hereinafter excluded.' Under the subdivision 'Exclusions,' it was stated: 'This endorsement does not insure against loss * * * by termites or other insects; wear and tear; deterioration; smog; smoke from agricultural smudging or industrial operations; rust; wet or dry rot; mould; mechanical breakdown; settling cracking, shrinkage, or expansion of pavements, foundations, walls, floors, or ceilings; unless loss by * * * collapse of buildings ensues. * * *.' (Emphasis added.)

The trial court found that although 'there was no appreciable damage to said house until approximately May 1st, 1959,' sometime between November 1, 1958, and February 1, 1959, the sewer pipe from the house began to leak at a point near the house, causing the sewer outflow from the house to infiltrate the unstable earth near and below the foundation. ¹ The court found 'that the cause of said sewer pipe so breaking and leaking was either the settling and consolidation of the inadequately compacted fill material upon which it (the sewer pipe) was placed, or the improper closure of certain joints therein, or a combination of both these causes.'

After the sewer had been emptying water near the foundation for at least three months, the house settled 'to uneven elevations to such an extent that its foundations and walls cracked, its floors became no longer level and certain of its doors and windows could no longer be opened or closed. The house sank in many places, one part dropping over seven inches. Subsidence at various points in most rooms ranged from two to six inches, although the dwelling remained inhabitable and did not collapse. The court found that but for the damage the reasonable market value of plaintiffs' home would be $18,200, but that its reasonable market value in the damaged condition was only $10,000.

In regard to the cause of the earth failure, the trial court made an express finding of fact that the water escaping from the break in the sewer line near the foundation 'infiltrated into said unstable earth below said foundation, causing it (the earth) to settle and consolidate with rapidity and causing plaintiffs' house thereon to settle to uneven elevations.' (Emphasis added.) The court also stated, among its findings concerning the cause of action against defendant National Union, 'That it is the nature of uncompacted fills such as that on which plaintiffs' dwelling was constructed to settle, and that the uncompacted fill settled as the natural result of its own weight, the weight of plaintiffs' dwelling thereon and the induction of waste water from a broken house lateral sewer.'

In order to be consistent with the finding hereinbefore set forth that the induction of waste water was the cause of the subsidence of the foundation, the finding next above must be interpreted to state that it is the nature of uncompacted fills to settle as the result of their own weight and the weight of objects thereon such as a dwelling and its appurtenances, but that the above factors resulting in potential weakness in the supportive earth were triggered to act by the induction of the waste water from the house, causing rapid earth compaction and subsidence. In this connection it must be noted that the Sabellas' home suffered no appreciable damage until the end of the fourth rainy season, which included the landslide-causing rains in the winter of 1955-1956. It would not seem unreasonable to infer that but for the break in the sewer line, the virtual absence of subsidence damage might have continued for some time.

The trial court further found that the process of earth compaction and resultant damage to the house continued from May 1, 1959 until the date of judgment (October 10, 1960); that such damage 'is reasonably certain to continue in the future for an indefinite period of time' until the earth is adequately compacted by natural or artificial means, and 'that the said process and the damage accruing therefrom was and is the...