Opinion
04/11301.
Decided on April 8, 2008.
LAW OFFICES OF JAMES D. DOYLE JAMES D. DOYLE, ESQ., of Counsel Attorney for Plaintiff.
HISCOCK BARCLAY, LLP JOHN R. CASEY, ESQ., of Counsel, Attorneys for Defendant.
Plaintiff maintained an insurance policy effective for the period of January 15, 2004 to January 15, 2005. On May 15, 2004 plaintiff reported that her foundation wall had collapsed. Defendant retained Floyd O. Herrick, Jr, a P.E. to perform an inspection. On May 26, 2004 Mr Herrick performed the inspection. The adjuster disclaimed by letter dated June 3, 2004, presumably based thereon. He concluded that the soil had become so saturated with continuous rain water, that the foundation wall, without additional steel supports, had been unable to support the hydrostatic load (pressure of at rest in ground water) and collapsed citing Section I (pg 5, 6) "Perils Insured Against — Coverage A B" (1) relative to specific Additional Coverage 8 for collapses, and (2) exclusions applicable when (1) is not applicable. (Schneider letter dated 6/3/04). The disclaimer asserted that since the cause of the collapse was not one of the 6 inclusions for collapse coverage (8a-f), including defective design during construction, remodeling or renovation [8f], (pg 5), it was then within the applicable exclusion of 2(b)(2)(e), (pg 7), ie., inground water pressure, and therefore not covered.
Law and Rationale:
Defendant's motion for summary judgment has not met its evidentiary burden to exclude coverage as a matter of law. Under the policy, hidden decay, (Additional Coverage 8(b)) (pg 5), is one of the causes for which plaintiff' is specifically entitled to damages from a collapsed wall, despite water pressure or freezing. (Additional Coverage 8, Coverage A(1), Section I — Perils Insured Against). Defendant's attorney acknowledges this in his submission. (Atty. aff. Sworn to 2/27/08, No. 8, #27). The
evidentiary submission of defendant's expert inferentially excludes decay and the other 5 listed inclusions by attributing the sole cause to in ground water pressure . However, the plaintiff's responding expert affidavit raises a question of fact by attributing the cause to deteriorating mortar, which then weakened the integrity of the wall causing it to eventually fall under normal "damp" soil conditions. There is no definition of decay contained in the policy submitted to the Court. Webster's New Collegiate Dictionary (1975 — G. C. Merriam Co.) defines decay: verb as (4): to decline in strength . . .; (5): to undergo decomposition // decay: NOUN 1: gradual decline in strength, soundness. . . . 2: a wasting or wearing away. ( Nemier v. Liberty Mutual, 289 AD2d 1053, (4th Dept., 2001)). Mortar rotting is arguably included in the definition of decay, and such ambiguity must be resolved against the insurer. ( Topor v. Erie Ins. Co., 28 AD3d 1199, (4th Dept., 2006)).
Accordingly, defendant has not shown as a matter of law that either the language of the policy excludes the plaintiff's claim, or that the cause is not factually within its inclusion as decay.
Nor has defendant shown as a matter of law that it timely asserted any disclaimer based on:
1. No collapse
or
2. That foundation inadequacies of steel and dirt caused the collapse.
Neither were stated in the June 3, 2004 disclaimer letter as a basis for disclaimer. Rather, the exclusion analysis of the adjuster was based on the language of the policy which was applicable when a collapse did occur. Also, the reference to steel reinforcement does not disclaim on defective design, but only advises that it is not an inclusion in 8(f) (pg 5). The letter further warns the insured to shore up and prevent "further collapsing walls" since adjoining walls which apparently were near collapse and not yet within the definition of a collapse. ( Royal Indemnity v. Grunberg, 155 AD2d 187, (3rd Dept., 1990)). No denial is made in the letter due to excessive dirt. Accordingly, the disclaimer letter does not meet the specific and clear disclaimer required by law as to those additional claims raised by defendant's attorney after the lawsuit was commenced. ( Lee v. State Farm, 32 AD3d 902, 903, (2nd Dept., 2006), citing Seaboard Sur Co. V. Gillette Co., 64 NY2d 304, 311, (1984)).
Further, even if the disclaimer letter is broadly read to include those additional basis of disclaimer, defendant is still not entitled to judgment as a matter of law based on evidence submitted on the issues of:
1. Whether there was a collapse
or
2. Inadequate support due to lack of steel beams and excessive dirt constituted defective design or defective construction.
The first is based on defendant's submissions of equivocal statements by plaintiff, and is not sufficient to prove no collapse as a matter of law. As to the second, the mere conclusory affidavit of defendant's expert of a defective design without stating what building standard was violated, if any, was insufficient to prove the second item as a matter of law, even if unopposed. However, the opinion was opposed by plaintiff's expert and raised a question of fact. ( Pittsford Plaza Co. V. TLC West, 45 AD3d 1272, (4th Dept., 2007)).
Accordingly, defendant's motion for summary judgment is denied.
This shall constitute the decision and order of the Court. The signing of this decision and order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the provisions of that rule regarding entry, filing and notice of entry. However, the filing of the underlying motion papers upon which this motion was made is hereby dispensed with pursuant to CPLR 2220. Attorney for the plaintiff is directed to enter this Decision/Order without notice and to serve all attorneys of record with a copy of this decision with notice of entry.
SO ORDERED.