Why an Insured Should Never Use an Expert Who Supports Application of an Exclusion

No Cover When Wear & Tear is Cause of Loss

Dominic Messina insured his home with Shelter Mutual Insurance Company. The brick veneer on an exterior wall of Messina’s home collapsed, and he filed a property damage claim with Shelter. After Shelter denied the claim, Messina sued the insurer for breach of contract in the Circuit Court of Jackson County. The circuit court granted Shelter’s motion for summary judgment, and Messina appealed. Messina has conceded that one of the causes of the wall collapse was explicitly excluded from coverage under Shelter’s policy.

Dominic Messina v. Shelter Insurance Company, WD82313, Missouri Court of Appeals Western District (October 8, 2019) the Missouri Court of Appeal dealt with claims of concurrent causation defeating exclusion.

FACTUAL BACKGROUND

Messina has owned and lived at the residence located at 501 Olive Street in Kansas City since approximately 1999. Messina acknowledged that the brick veneer on the south side of his home “was bulging out away from the wall . . . since he bought the house.”

In 2016, Shelter issued a homeowner’s insurance policy covering Messina’s residence. Messina returned home to discover that most of the brick veneer on the south side of his residence had collapsed into his driveway. A few weeks later, Messina contacted Mark Towner, a professional engineer, to determine the cause of the collapse. Towner testified he found pre-existing weakness and deterioration in the mortar of the south wall, which had developed over a period of years and that the brick veneer wall collapsed as a 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 which occurred on the day of the collapse. Towner conceded 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.

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.

ANALYSIS

The general rule in interpreting insurance contracts is to give the language of the policy its plain meaning. Any ambiguity in the language of the insurance policy is resolved against the insurer-drafter, while unambiguous policy language must be enforced as written.

The policy defines “accidental direct physical loss” as “actual physical damage to . . . a part of the covered property which is caused by an accident.” In turn, the policy defines “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 excludes coverage where certain conditions or events cause the loss or damage, including: “9. Wear and tear; marring or scratching; deterioration; inherent vice; latent defect; mechanical breakdown; . . . rust; mold; mildew; fungus; spores; wet or dry rot; contamination . . . .”

Messina has conceded the facts necessary to trigger the application of Exclusion 9. Messina, though his expert, conceded that the deterioration, corrosion and rust of the wall’s components were a cause of the wall’s collapse, even if other circumstances acted together with the pre-existing deterioration, corrosion and rust to cause the collapse.

As a general proposition, Missouri law holds that “where an insured risk and an excluded risk constitute concurrent proximate causes of an accident, a liability insurer is liable as long as one of the causes is covered by the policy. However, an insurance policy can be written to exclude the operation of this concurrent proximate causation principle, however.

The Shelter policy had an “anti-concurrent causation” provision that allowed that an exclusion is an exclusion regardless of any other cause that contributes to the loss, either concurrently or in any sequence to the loss.  The policy provides no coverage if one of the listed conditions or events is a “but for” cause of the loss or damage, regardless of the fact that other events or conditions, which are not excluded, caused the loss or damage or contributed to the loss or damage, in any sequence.

The testimony of Messina’s expert Towner conceded that the brick veneer would not have collapsed but for the pre-existing deterioration of the mortar, and the corrosion and rust of the nails holding the veneer wall to the underlying sheathing. This concession defeats coverage under Shelter’s policy, regardless of the fact that other events or conditions, which are not excluded, contributed to the loss or damage.

The operation of Exclusion 9, standing alone, justifies the circuit court’s grant of summary judgment to Shelter.

ZALMA OPINION

The insured, Messina, hired an honest engineer to determine the cause of his loss and presented the findings of the honest engineer to the court. The engineer’s findings established that the cause of the collapse of the brick veneer at his house was due, primarily to wear and tear, rust and deterioration and that – but for the rust and wear and tear – the brick veneer would not have failed. Even if concurrent causes – not excluded – contributed to the loss the anti-concurrent clause language of the policy defeated the claim since the proximate cause of the loss was, as his engineer stated, was the cause of the loss.


© 2019 – Barry Zalma

This article, and all of the blog posts on this site, digest and summarize cases published by courts of the various states and the United States.  The court decisions have been modified from the actual language of the court decisions, were condensed for ease of reading, and convey the opinions of the author regarding each case.

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant  specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 50 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com.

Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.

Over the last 51 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.

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About Barry Zalma

An insurance coverage and claims handling author, consultant and expert witness with more than 48 years of practical and court room experience.
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