Summary
noting that when words in a policy of insurance have a plain and ordinary meaning, it is neither necessary nor permissible to resort to construction unless plain meaning would lead to an absurd result
Summary of this case from Wright v. Pennsylvania Life Insurance CompanyOpinion
No. 69-343
Decided May 27, 1970.
Insurance — Construction of policy — Charge to jury — Plain, ordinary meaning of contractual terms — "Collapse" construed — "Collapse of structure" a caving into an unorganized mass — "Landslide" construed.
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.
APPEAL from the Court of Appeals for Hamilton County.
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.
Teasdale did experience some difficulty, presumably due to the shifting of the building, in removing the machinery when it later moved to another location.
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 appears 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 moton to certify the record.
Messrs. Goodman Goodman and Mr. Sol Goodman, for appellants.
Messrs. Clausen, Hirsh, Miller Gorman, Mr. Jacob T. Pincus, Messrs. Lindhorst Dreidame and Mr. James L. O'Connell, for appellee.
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.e., 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, paragraph one of the syllabus; Great American Mut. Indem. Co. v. Jones, 111 Ohio St. 84, paragraph one of the syllabus; Toms v. Hartford Fire Ins. Co., 146 Ohio St. 39, paragraph one of the syllabus; Munchick v. Fidelity Cas. Co. of N.Y., 2 Ohio St.2d 303, 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; First Natl. Bank v. Houtzer, 96 Ohio St. 404.
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 falling down, falling together, or caving into an unorganized mass. When words used in a policy of insurance have a plain and ordinary meaning, it is neither necessary nor permissible to resort to construction unless the plain meaning would lead to an absurd result. Lawler v. Burt, 7 Ohio St. 341, 350; First Natl. Bank v. Houtzer, 96 Ohio St. 404, 406; Federal Gas Fuel Co. v. Columbus, 96 Ohio St. 530, 544.
The assertion by plaintiffs that the parties intended the word "collapse" to have a broader meaning imposes the burden on plaintiffs of establishing that such was the true intent of the parties. As the Supreme Court of Texas said in Employers Mutual Cas. Co. v. Nelson (Tex.), 361 S.W.2d 704, at 709:
"Although contracts are * * * to be construed strictly in favor of the insured, nevertheless they are to be construed generally as other contracts, in that unambiguous words and phrases are to be taken in their ordinary meaning unless there is something in the contract that would indicate a contrary intention."
Ohio law also requires intent to be proved from the written contractual matter expressed by the parties. Blosser v. Enderlin, 113 Ohio St. 121, paragraphs one and two of the syllabus. See Employers' Liability Assur. Corp. v. Roehm, 99 Ohio St. 343. Plaintiff has presented no evidence concerning any contrary intent of the parties, and thus the word "collapse" must be given its ordinary and common meaning.
Plaintiff urges that such a conclusion is illogical and that the uninstructed jury's verdict that a collapse occurred demonstrates the ambiguity of the term. That argument is untenable because, without such an instruction, the jury was required to speculate about the meaning of a contractual term when a common ordinary meaning of the term existed.
In Garlick v. McFarland, 159 Ohio St. 539, Judge Matthias states, at page 545: "The rule is well established that words used in a contract of insurance are to be given their natural and usual meaning unless otherwise defined in the contract." In that case, the parties were in dispute over the definition of "owner" as used in an insurance policy. At page 549, it is stated that "the definition of owner as used in the insurance policy was a question of law for the court * * *." In the case at bar, the policy does not define "collapse," nor was evidence adduced revealing that a meaning of the term different from the usual meaning was intended by the parties. The refusal to give a special charge defining "collapse" and the omission of a definition of that term in the general charge, presented the issue as if it were a question of fact for jury determination, rather than one of law. We are of the opinion that the court should have instructed the jury concerning the common ordinary meaning of collapse.
Although we deem this failure to be error, a retrial of the cause is not indicated, because of our conclusions regarding the posture of the evidence.
We agree with the Court of Appeals that reasonable minds construing the evidence most favorably cannot conclude plaintiffs sustained damages as a result of a collapse.
Likewise, similar reasoning applies to plaintiff's contention that there was coverage under paragraph 13 of the policy, entitled "Landslide." The ordinary meaning of that word is the "sliding down of a mass of soil * * * or rock on a steep slope." Random House, The American College Dictionary. Using this definition, there is no evidence of a "landslide" in the record.
Since we hold that there was no coverage under the policy, under the facts of this case, it is unnecessary to consider the effect or meaning of the exclusionary clauses. The judgment of the Court of Appeals is, therefore, affirmed.
Judgment affirmed.
O'NEILL, C.J., LEACH, SCHNEIDER, HERBERT and CORRIGAN, JJ., concur.
CHIEF JUSTICE TAFT participated in this case which was, however, decided after his death.
LEACH, J., of the Tenth Appellate District, sitting for MATTHIAS, J.