Bradish v. British America Assur. Co.

Full title: BRADISH, Respondent, v. BRITISH AMERICA ASSURANCE COMPANY, Appellant

Court: Supreme Court of Wisconsin

Date published: Mar 8, 1960

101 N.W.2d 814 (Wis. 1960)

101 N.W.2d 814

Opinion

February 4, 1960 —

March 8, 1960.

APPEAL from a judgment of the superior court of Douglas county: A. WALTER DAHL, Judge. Affirmed.

For the appellant there was a brief by Hughes, Anderson, Davis Walker, and oral argument by John L. Davis and by Harold Witkin, all of Superior.

For the respondent there was a brief by Borg, McGill Moodie of Superior, and oral argument by Douglas S. Moodie.

Action on an insurance policy insuring plaintiff against loss occasioned by the collapse of all or a part of the insured building. The insurance company appeals from a judgment for plaintiff.

The facts are undisputed. Plaintiff intended to build a dwelling for himself and family and he had progressed as far as the construction of the basement. The basement walls, which also served as the foundation of the home, were composed of cement blocks, joined by mortar or cement. A flat roof covered the basement and ultimately would serve as a floor for the next story when that should be built. At this stage plaintiff and his family moved in and occupied the basement as their dwelling.

On or about that time, on November 3, 1956, defendant issued its policy insuring plaintiff against direct loss caused by "Collapse of building(s) or any part thereof." Other material provisions of the policy are:

"Section XIV D. Alterations and Repairs: Permission granted to make alterations, additions, and repairs, and to complete structures in course of construction. In the event of loss hereunder, the insured is permitted to make reasonable repairs, temporary or permanent, provided such repairs are confined solely to the protection of the property from further damage and provided further that the insured shall keep an accurate record of such repair expenditures. The cost of any such repairs directly attributable to damage by any peril insured against shall be included in determining the amount of loss hereunder. Nothing herein contained is intended to modify the policy requirements applicable in case loss occurs, and in particular the requirement that in case loss occurs the insured shall protect the property from further damage."

The policy further provides:

"Unless otherwise provided in writing added hereto, the company shall not be liable for loss occurring (a) while the hazard is increased by any means within the control or knowledge of the insured;. . ."

And further:

"This company shall not be liable for loss by neglect of the insured to use all reasonable means to save and preserve the property at and after a loss. . . ."

After the plaintiff had occupied the structure as a dwelling for several months, he and his wife noticed that small particles of mortar and waterproof paint were coming off the wall and on the night of June 22-23, 1958, they heard creaking and groaning. In the morning they discovered that it "chunks" of mortar and concrete were on the floor and that a crack had developed in the south wall so large that plaintiff's hand might be inserted, and the south wall of the basement had bulged approximately four inches, both horizontally and vertically.

The plaintiff procured 2 x 4's promptly and placed them so that they would support the roof but by the next day the bulge in the wall had increased to approximately six to eight inches. The plaintiff sent his family to live with friends to avoid injury by a possible falling of the wall and by hired labor he dug an excavation outside the south wall into which a new retaining wall of concrete was poured. Then the original wall was bolted to the new one and the old was drawn back into place. The plaintiff's action is one upon the insurance policy to recover the cost of such repairs and incidental property damage.

BROWN, J.

The case turns upon the meaning to be ascribed to the words "Collapse of building(s) or any part thereof," as "collapse" is used in the insurance policy. The plaintiff contends that there was a collapse of a part of the building and the defendant contends that there was no collapse whatever. On the facts as above stated the trial court found that there had been a collapse within the meaning of the policy.

Appellant cites numerous dictionaries defining "collapse" which, in general, paraphrase the Century Dictionary as follows:

"To fall together, or into an irregular mass or flattened form, through the loss of firm connection or rigidity and support of the parts, or loss of the contents, as a building through the falling in of its sides, or an inflated bladder from escape of the air contained in it."

Appellant submits that coverage against a collapse is limited to such an occurrence. Of course, such a falling would be a collapse. It is undisputed that this wall did not fall into an irregular mass or flattened form. The question is whether something short of a wall reduced to a heap of rubble will satisfy the term "collapse" as used in the policy.

Two very recent cases have been reported requiring the interpretation of collapse coverage as the appellant's policy uses the term.

The first such case is Travelers Fire Ins. Co. v. Whaley (10th Cir. 1959), 272 F.2d 288. In that case the court said (p. 290):

"So here, we must construe the word in the context it was used by the parties in executing this insurance contract. Did the parties intend there should be no coverage, and, therefore, no recoverable loss, unless there was a complete collapse and tumbling down of the foundation wall, so as to cause the superstructure to come crashing down in a heap of rubble; or did they mean the more-realistic situation that if the foundation disintegrated by settling, pulling away or cracking so that it would no longer support the house, that there was a partial collapse? . . .

"If the appellant intended that the word `collapse' should be ascribed the abstract dictionary definition it now contends for, it should have so stated. In the absence of such an expressed intent, we think it more realistic to define the terms in such a contract as connoting a sinking, bulging, cracking, pulling away of the wall so as to impair its function of supporting the superstructure and destroying its efficiency as a habitation."

The second such case is Jenkins v. United States Fire Ins. Co. (Kan. 1959), 347 P.2d 417, 422, 423:

"When construed on the basis of intention, as required by the foregoing decision, and others therein cited, we believe the clause `Collapse of building or any part thereof' as used in the involved insurance contract is to be interpreted as comprehending that, if brought about by unusual and extraordinary circumstances which the parties to that agreement could not normally expect or foresee on the date of its execution, the settling, falling, cracking, bulging, or breaking of the insured building or any part thereof in such manner as to materially impair the basic structure or substantial integrity of the building is to be regarded as a `collapse' of the building within the meaning of that word as used in such clause of the policy. We further believe that questions relating to whether that condition came about under the previously related conditions and circumstances are questions of fact for the jury and the trial court."

We find no Wisconsin precedents to control us in the interpretation of policies purporting to grant coverage of loss caused by the collapse of an insured building or any part thereof. The interpretation of those terms adopted by the United States court of appeals, and the supreme court of Kansas, as expressed in Travelers Fire Ins. Co. v. Whaley, supra, and Jenkins v. United States Fire Ins. Co., supra, is persuasive to our minds and we adopt as our own their definitions and applications of collapse coverage as presented by the facts of the instant case.

These facts demonstrated that before remedial measures were taken the basement south wall had bulged and cracked in such a manner as to impair materially the wall's basic structure and substantial integrity. We conclude, therefore, that a collapse occurred to a part of the insured building and the defendant is liable upon its policy for the loss attendant upon "collapse."

By the Court. — Judgment affirmed.