Stewart v. Preferred Fire Ins. Co.

• Decision Date: 12 December 1970
• Docket Number: No. 45857,45857
• Citation: 477 P.2d 966,206 Kan. 247
• Parties: , 44 A.L.R.3d 1307 Bennie STEWART and Novella Stewart, Appellants, v. PREFERRED FIRE INSURANCE COMPANY, a Corporation, Appellee, AMERICAN ROCK CRUSHER COMPANY, a Corporation, Third-Party Defendant.
• Court: Kansas Supreme Court

Page 966

477 P.2d 966

206 Kan. 247, 44 A.L.R.3d 1307

Bennie STEWART and Novella Stewart, Appellants, v. PREFERRED FIRE INSURANCE COMPANY, a Corporation, Appellee AMERICAN ROCK CRUSHER COMPANY, a Corporation, Third-Party Defendant.

No. 45857.

Supreme Court of Kansas.

Dec. 12, 1970.

Syllabus by the Court

1. When an insurance contract is not ambiguous courts will not make another contract for the parties but will enforce the contract as made.

2. The words of a contract of insurance if clear and unambiguous are to be taken and understood in their plain, ordinary and popular sense.

3. Under a homeowner's house policy insuring against collapse but excluding from coverage any loss caused by 'earth movement including but not limited to earth sinking', the loss of the house was not covered by the policy when the supporting soil under and around the foundation of the house gave way and sank into a pre-existing shaft area of a mining operation underlying the property.

Samuel J. Wilson, of Carson, Mahoney & Fields, Kansas City, argued the cause and was on the brief for appellants.

John J. Jurcyk, Jr., of McAnany, Van Cleave & Phillips, Kansas City, argued the cause and was on the brief for appellee.

FROMME, Justice.

This is a claim on an insurance policy covering a dwelling house. The trial court sustained the insurance company's motion and entered judgment against the homeowners.

Only one question is presented by the appeal. Was the loss arising from the collapse of the house excluded from coverage by a clause in the policy excluding loss caused by earth movement including but not limited to earth sinking? The house sank into a pre-existing mine shaft underlying the property.

A stipulation of facts was entered into by the appellant homeowners and the insurance company. For the purpose of this appeal the pertinent facts stipulated are as follows:

'(1) Homeowners Policy No. H 10 89 16, the form of which is attached hereto and marked Exhibit 'A', was issued by the 'Company' to the 'Plaintiffs' on or about July 21, 1964 and was in full force and effect on the date of the loss, January 21, 1965.

'(2) The home in question was owned by the 'Plaintiffs' and was located at 2035 South 38th Street, Kansas City, Kansas.

'(3) At or about 11:20 A.M. on January 21, 1965, when the 'Plaintiffs' were engaged in their employment away from said premises, the supporting soil under and around the foundation of said home gave way and sunk into a pre-existing cavern or shaft area of a mining operation underlying 'Plaintiffs' property; as a result of which said home was totally destroyed as a residence by reason of portions thereof sinking into said cavern or shaft thereby causing the whole of said dwelling to be titled to various angles, and portions thereof to collapse.'

The policy provisions pertinent to the loss of the home are as follows:

'PERILS INSURED AGAINST

'This policy insures under Section I against direct loss to the property covered (and additional living expense resulting from such loss) by the following perils as defined and limited herein:

'14. COLLAPSE (NOT SETTLING, CRACKING, SHRINKAGE, BULGING OR EXPANSION) OF BUILDING(S) OR ANY PART THEREOF, but excluding loss to (a) outdoor equipment, gutters and downspouts, cloth awnings and fences, all except as the direct result of the collapse of a building; (b) fences, pavements, patios, swimming pools, foundations, retaining walls, bulkheads, piers, wharves or docks, when such loss is caused by freezing, thawing, or by the pressure or weight of ice or water whether driven by wind or not; all except as the direct result of the collapse of a building.'

'SPECIAL EXCLUSIONS

'THIS COMPANY SHALL NOT BE LIABLE:

'(a) as respects Perils * * * 14 * * *: for loss caused by, resulting from, contributed to or aggravated by any earth movement, including but not limited to earthquake, landslide, mud flow, earth sinking, rising or shifting; unless loss by fire or explosion ensues, and this Company shall then be liable only for such ensuing loss; * * *.' (Emphasis added.)

At the outset we note certain issues raised by a third party petition and the answer of the third party defendant are of no concern in this appeal. Likewise any facts alleged in the third party petition and answer cannot be considered when not included in the stipulation of facts. Accordingly we are not at liberty to accept appellants' statement that the American Rock Crusher Company had created the subterranean cavity and negligently failed to leave sufficient subjacent support or that it failed to maintain the supporting structures in the mine. We cannot say that the collapse was proximately caused by the wrongdoing of the American Rock Crusher Company. The most we can say under the facts stipulated by these parties is that the supporting soil under and around the foundation of the house gave way and sank into a pre-existing shaft area of a mining operation underlying the property. (See stipulation, paragraph (3).)

In contracts of adhesion, where the insurance company selects the language and the insured is 'stuck with it', this court has adhered to the rule that any uncertain language in an insurance policy should be construed strictly against the company and liberally in favor of the insured. (Fire Association of Philadelphia v. Taylor, 76 Kan. 392, 91 P. 1070; Leiker v. State Farm Mutual Automobile Ins. Co., 193 Kan. 630, 396 P.2d 264.) When an insurance contract is not ambiguous courts will not make another contract for the parties but will enforce the contract as made. (Braly v. Commercial Casualty Ins. Co., 170 Kan. 531, 227 P.2d 571; Bramlett v. State Farm Mutual Automobile Ins. Co., 205 Kan. 128, 468 P.2d 157.) Clear and unambiguous words in a contract of insurance are to be taken and understood in their plain, ordinary and popular sense. (Bennett v. Conrady, 180 Kan. 485, 305 P.2d 823; Braly v. Commercial Casualty Ins. Co., supra.)

The thrust of appellants' argument is that the exclusionary clause in the policy appears to be ambiguous in that it excludes loss from 'earth movement' including 'earthquakes, landslides and earth sinking'. They say since the exclusion appears to them to be ambiguous we should apply the formal rule of construction, ejusdem generis, defined recently in Keller v. Ely, 192 Kan. 698, 391 P.2d 132. That rule is when specific things named in an instrument are followed by a general term, the general term is deemed to be restricted to and refer only to those things similar in nature to those specifically enumerated.

Applying that rule to the exclusionary clause in this case the appellants insist the enumerated events, earthquake, landslide and earth sinking are all events which have their origin in nature, are 'acts of God' and that the loss of appellants' home was not in that category. Accordingly they argue the loss was not excluded.

Although their argument is an ingenious one we cannot accept their reasoning and must reject the argument. Before the rule of ejusdem generis can be applied the clause must be ambiguous. (See Keller v. Ely, supra.) The term 'earth movement' taken in its plain, ordinary and popular sense means any movement of earth whether it be up, down or sideways. The words 'earthquake, landslide, mud flow' and the term 'earth sinking, rising or shifting' all refer to vertical or horizontal movements of earth or soil, wet and dry. We fail to see how the exclusionary clause can be considered ambiguous. The words used may not reasonably be understood to have two or more possible meanings. (See Wood v. Hatcher, 199 Kan. 238, 428 P.2d 799.)

In addition we cannot agree that landslides, mud flows, earth sinking, rising or shifting are natural phenomena or 'acts of God'. An 'act of God' as known in the law is an irresistable superhuman cause, such as no reasonable human foresight, prudence, diligence and care can anticipate and prevent. (See Lee v. Mobil Oil Corporation, 203 Kan. 72, Syl. 1, 452 P.2d 857.) For the most part the events enumerated in the exclusionary clause originate from the negligence or carelessness of man in failing to follow proper conservation practices. When earthquakes, which fall within the legal definition of an 'act of God', are included along with landslides, mud flows and earth sinking there is no apparent basis for the restriction urged by appellants under the rule of ejusdem generis.

When we consider the stipulation of facts entered into by the parties it appears the supporting soil or earth under and around the foundation of the house gave way and sank. The exclusion covered loss caused by earth movement including earth sinking. We find no ambiguity in the exclusionary clause.

...