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Blue Christmas: No coverage for brick veneer collapse

Blue Christmas: No coverage for brick veneer collapse

February 25
09:19 2020

Blue Christmas: No coverage for brick veneer collapse

Dominic Messina owned a house that was insured by Shelter Mutual Insurance Company. Messina acknowledged that, since he had purchased the house in 1999, the brick veneer on the south side of the house “was bulging out away from the wall … .”

On December 25, 2016, Messina returned home to discover that most of the brick veneer on the south side of his house had collapsed into his driveway. A few weeks later, Messina contacted Mark Towner, a professional engineer, to determine the cause of the collapse. At his deposition, Towner testified that he had found pre-existing weakness and deterioration in the mortar of the south wall that had developed over a period of years. In addition, Towner testified that metal connectors that were intended to hold the brick veneer to the wood sheathing behind it had corroded and rusted. Towner testified that the brick veneer wall collapsed as the result of a combination of factors, including: deterioration of the mortar; corrosion and rust of the metal nails holding the brick veneer to the wood sheathing, and the force of a wind suction or wind velocity event that occurred on the day of the collapse. Towner stated that, but for the long-term deterioration of the mortar and the corrosion or rusting of the metal connectors, the wind would not have caused the brick veneer to collapse on its own.

After Messina filed a claim for the loss, Shelter hired its own engineer, Kevin Kirchmer, to inspect the collapsed wall. In his report Kirchmer attributed the collapse of the brick veneer to long-term expansion and contraction of the wood sheathing, long-term corrosion of the brick nails, and a lack of maintenance. Kirchmer specifically concluded that the wall did not collapse because of the force of the wind.

Shelter denied Messina’s claim. Messina then filed a breach of contractaction against Shelter, seeking to recover the cost of the repair and replacement of the brick veneer. He asserted that the policy provided coverage because a wind event caused the collapse and the event was a covered cause of loss.

Shelter moved for summary judgment on the basis that the uncontroverted facts showed that Messina’s claim did not involve an “accidental direct physical loss” covered by the policy, because the deterioration and bowing of the brick veneer had not occurred abruptly. Shelter also contended that, even if the loss fell within the definition of an “accidental direct physical loss,” coverage was defeated by the policy’s exclusions.

The court granted Shelter’s motion for summary judgment. Messina appealed.

On appeal, Messina argued that the court erred in granting summary judgment to Shelter. In his first point he argued that a genuine factual issue existed as to whether a wind velocity or wind suction event caused the collapse of the wall and therefore whether the collapse was caused by an abrupt event and could be considered an “accidental direct physical loss.” In his second point, Messina argued that the policy’s exclusions could not defeat coverage because a genuine issue of fact existed as to whether the wall’s pre-existing deteriorated condition was known or visible to him prior to the collapse. Because it was dispositive of the appeal, the court addressed only Messina’s second point.

The Shelter policy defined “accident-al direct physical loss” as “actual physical damage to … a part of the covered property which is caused by an accident.” The policy defined “accident” as:

an action or occurrence, or a series of actions or occurrences that:

(a) Started abruptly;

(b) During the policy period; and

(c) Directly resulted in … property damage.

The policy excluded coverage where certain conditions or events caused the loss or damage.

EXCLUSIONS APPLICABLE TO COVERAGES A & B

We do not cover any loss or damage if it would not have occurred in the absence of any event or condition listed below. That loss or damage is excluded from coverage regardless of:

(a) The proximate cause of that event or condition;

(b) The fact that other events or conditions, which are not excluded, caused the loss or damage;

(c) The fact that other events or conditions, which are not excluded, contributed to the loss or damage;

(d) The sequence of the events or conditions that caused the loss or damages. …

….

9. Wear and tear; marring or scratching; deterioration; inherent vice; latent defect; mechanical breakdown; … rust; mold; mildew; fungus; spores; wet or dry rot; contamination. …

The court stated that Messina hadconceded the facts necessary to triggerthe application of Exclusion 9. Messina’s expert engineer, Mark Towner, conceded that if the mortar had not deteriorated and if the metal connectors had not rusted or corroded, the brick veneer wall would not have collapsed simply because of the wind velocity or wind suction event that occurred on December 25, 2016.

Messina argued that Exclusion 9 should not defeat coverage because the “pre-existing condition[s]” that triggerExclusion 9 “were not known to or visible to the insured” prior to the wall’s collapse. The court pointed out that Messina cited no legal authority to support his argument that the exclusion was limited to conditions that were known to or discoverable by the insured prior to a loss.

The judgment of the trial court was affirmed.

Messina v. Shelter Insurance Company—Missouri Court of Appeals, Western District—October 8, 2019—No. WD 82313.

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