Lead Opinion
In this appeal, we are asked to interpret a common, yet controversial, insurance policy provision which extends coverage to an insured for “damage caused by or resulting from risks of direct physical loss involving collapse of a building or any part of a building....” For the reasons set forth herein, we conclude that the specific policy language at issue provides an insured with coverage for damages caused by the collapse or imminent collapse of a building or a part thereof and does not limit itself to damages for the actual collapse of a building. Based upon our holding today, we affirm the order of the Superior Court.
Appellee, 401 Fourth Street, Inc. (“Fourth Street”), owns a building located in Bridgeport, Pennsylvania, which is in Montgomery County. Fourth Street insured the building through an insurance policy issued by Appellant Investors Insurance Group (“Investors Insurance”). The policy was effective March 21, 1997 through March 21, 1998. Fourth Street incurred an additional premium for an endorsement covering collapse. Specifically, pursuant to Section D of the policy—“ADDITIONAL COVERAGE-COLLAPSE,”
We will pay for loss or damage caused by or resulting from risks of direct physical loss involving collapse of a building or any part of a building caused only by one or more of the following ...
* * *
2. Hidden decay
* * *
*451 Collapse does not include settling, cracking, shrinkage, bulging or expansion.
On April 4, 1997, tenants in the building noticed that a parapet wall was bowed and leaning inward. Fourth Street filed an insurance claim for coverage on April 30, 1997. An engineer hired by Fourth Street inspected the building on May 1, 1997, and again a week later on May 8, 1997. Investors Insurance also hired an engineer to examine the building.
Fourth Street’s engineer’s report concluded that the internal bonds that tied the parapet wall to the structural framing of the building had recently given way, and that a large, sudden movement had occurred. The engineer described the situation as “very dangerous and must be repaired immediately.” Franklin Engineering, Inc. Letter dated May 15, 1997, R.R. 93a. According to the engineer, the cost to repair the parapet wall would be between $90,000 and $100,000.
Conversely, Investors Insurance’s engineer reported that the interior steel that had been covered by the building’s brickwork had corroded, and as a result of that process, had expanded in volume. This, according to the engineer, caused the bricks above the corroded steel to be “jacked upwards.” Investors Insurance’s engineer concluded that the corrosion was attributable to “a lack of normal maintenance of the brick joints, roofing and shelf angle.” C.N. Timbie Engineers, Inc. Letter dated May 19, 1997, R.R. 94a. Based upon the engineers’ reports, Investors Insurance denied Fourth Street’s claim under the policy.
As a result of the denial of its claim, on October 14, 1997, Fourth Street filed a breach of contract action against Investors Insurance in the Court of Common Pleas of Montgomery County. After discovery, the parties filed cross-motions for summary judgment.
The trial court denied Fourth Street’s motion for summary judgment, granted Investors Insurance’s motion, and dismissed Fourth Street’s complaint. In reaching its conclusions, the court focused on the term “collapse” contained in the provision providing coverage for “risks of direct physical loss
Fourth Street appealed to the Superior Court. A majority of the three-member panel of the court determined that coverage was proper under the policy and reversed the grant of summary judgment in favor of Investors Insurance. 401 Fourth Street, Inc. v. Investors Insurance Group,
The majority also rejected the trial court’s fear that a contrary interpretation would subject an insurer to liability for “potentially infinitesimal risks” or “the existence of some small or vague possibility” of collapse, as the situation before the court was not one of such low risk or possibility of collapse, as according to the majority, “both experts agreed that if repairs were not undertaken immediately, the parapet wall could completely collapse.” Id. Accordingly, the Superior Court concluded that the trial court had erred as a matter of law in granting Investors Insurance’s motion for summary judgment, and remanded for further proceedings.
Judge Joan Orie Melvin dissented. Specifically, the dissent looked to the policy language that defined “collapse” as not including “bulging,” and concluded that the bowing of the parapet wall was not covered by the policy language. Id. Additionally, the dissent rejected the majority’s focus on the
We granted allocatur to determine whether summary judgment was appropriate and, in doing so, to resolve the dispute regarding the proper interpretation of the insurance policy’s endorsement regarding collapse. An appellate court may reverse the granting of summary judgment if there has been an error of law or an abuse of discretion. Atcovitz v. Gulph Mills Tennis Club,
The arguments of the parties are fairly straightforward. Investors Insurance contends that under well-established Pennsylvania case law by this Court, the term “collapse,” as contained in an insurance policy, has been interpreted to require the actual falling down of the wall. Here, the wall did not collapse, and in the absence of such a collapse, Fourth Street is not entitled to coverage. Furthermore, according to Investors Insurance, the terms “risks” and “involving” neither removed this case from our prior controlling case law nor did they expand coverage, and by engaging in a tortured construction of the policy language, the Superior Court improperly broadened coverage by not requiring an actual collapse. Additionally, Investors Insurance maintains that the Superior Court ignored that the policy specifically excluded from coverage “bulging” and that on this basis, Fourth Street is not
Fourth Street counters that the Superior Court majority properly interpreted the policy language which covered Fourth Street’s “risk of direct physical loss involving collapse,” when the wall of the building was in danger of collapse. As the term “collapse” was not defined by Investors Insurance, it was for the court to construe. According to Fourth Street, the term “collapse,” as well as the phrase “risks of direct physical loss involving collapse,” is ambiguous, and a growing majority of courts have defined the term “collapse” as “any serious impairment of structural integrity.” Thus, the policy language reasonably includes not just when a wall actually falls, but also when a wall is in imminent danger of falling. Furthermore, unlike the policies at issue in prior case law, the language which includes the terms risk of direct physical loss involving collapse provides broader coverage to Fourth Street. Finally, Fourth Street offers that it would be against public policy only to find insurance coverage when an insured’s building actually falls to the ground, as it would endanger the lives of persons in and around the building as well as surrounding properties.
To address the parties’ arguments we begin our analysis by setting forth the well-established rules of insurance contract interpretation. “The task of interpreting [an insurance] contract is generally performed by a court rather than by a jury.” Madison Construction Co. v. Harleysville Mutual Ins. Co.,
With these principles in mind, we turn to resolution of the arguments raised by the parties. Based on the above-stated principles of contractual interpretation, it becomes clear that the focal point of our inquiiy is the language of the insurance policy. The parties first focus on the term “collapse.” Specifically, Investors Insurance contends that the single policy term “collapse” requires the actual falling down of the wall for coverage. Skelly v. Fid. & Cas. Co. of New York,
While each of these arguments carry with them some force, we need not consider, or reconsider, the precise mean
Interpretation and construction of the entire phrase “risks of physical loss involving collapse” is an issue of first impression for our Court. Investors Insurance argues that the terms “risks” and “involving” neither remove this case from our prior controlling case law nor did they expand coverage. Fourth Street offers that the policy language includes when a wall is in imminent danger of falling and that, unlike the policies at issue in prior case law, the language which includes the phrase risk of direct physical loss involving collapse provides broader coverage.
Recent decisions from other jurisdictions specifically interpreting similar policy language, although not binding on our Court, are instructive. These courts have found the provision to be ambiguous and interpreted the phrase “risk of physical loss involving collapse” to provide broader coverage than a
Specifically, in Doheny West Homeowners’ Ass’n v. American Guar. & Liab. Ins. Co.,
Fearful, however, that neglect over an extended period could result in collapse, and that such an interpretation of the provision could convert the insurance policy into a maintenance agreement, the court concluded that collapse could be actual or imminent. Id. at 406,
Similarly, in Ocean Winds Council v. Auto-Owner Ins. Co.,
Perhaps most persuasively, in Assurance Co. of America v. Wall & Assoc. LLC of Olympia,
To interpret the clause as a whole to mean that coverage extends only upon ‘a sudden falling down’ impermissibly disregards the other aspects of the clause and renders them ineffective.... Thus, even if the district court properly defined the word “collapse” to mean “a sudden falling*459 down,” it erred in ending the inquiry there; the court should have then considered the rest, of the clause’s language to ascertain its practical and reasonable interpretation. We therefore conclude that this policy language not only covers actual collapse but also imminent collapse.
Assurance Co. of America,
Upon consideration of the arguments of the parties and the fast-emerging consensus of jurisdictions regarding the nature and the scope of the policy language “risks of direct physical loss involving collapse of a building or any part of a building,” we determine that the undefined contractual language is not clear and free from ambiguity but is reasonably susceptible of different constructions and being understood in more than one sense, and thus is ambiguous.
By its terms, the provision contemplates broader coverage than policy language simply employing the term “collapse.” This conclusion is made manifest when the language chosen by Investors Insurance in its policy, “We will pay for loss or damage caused by or resulting from risks of direct physical loss involving collapse,” is compared with other insurance policy language that does not suggest such broad coverage. See Weiner v. Selective Way Ins. Co.,
Having found an ambiguity, we are bound by the controlling principle that when a provision in a policy is ambiguous, the policy is to be construed in favor of the insured and against the insurer as drafter of the policy. Mohn v. American Casualty Co. of Reading,
Thus, we hold that under the ambiguous language at issue in this policy, construed in favor of the insured, the policy provides coverage for damage caused by the falling down, or imminent falling down of a building or part thereof.
We now must consider whether the Superior Court properly rejected the trial court’s entry of summary judgment in favor of Investors Insurance. Specifically, we shall determine whether there is any genuine issue of material fact and if Fourth Street, who will bear the burden of proof at
The trial court found no dispute as to the facts underlying this matter. It erred, for the reasons stated above, in its interpretation of the pertinent policy language. The Superior Court majority, while coming to what we believe to be a correct interpretation of the policy language, appeared to have also found no genuine issue of material fact. Specifically, the majority opined that both experts agreed that collapse of the wall was imminent. Conversely, the dissent suggested that neither expert found the collapse to be imminent.
Based upon the foregoing, we find that the majority of the Superior Court was somewhat mistaken in concluding that “experts agreed that if repairs were not undertaken immediately, the parapet wall could completely collapse.” The dissent, however, also erred in its conclusion that “neither expert testified that collapse is imminent.” First, it is seemingly true that neither expert “testified,” as it appears that the trial court considered the cross-motions for summary judgment based upon the parties’ pleadings and exhibits in support thereof. Yet, while Fourth Street’s expert’s letter does not use the magic language “collapse is imminent,” it all but states so when it expresses the engineer’s opinion that the situation was “extreme” and “very dangerous and [the wall] must be repaired immediately.” We must construe the record in the light most favorable to the non-moving party, here, Fourth Street. In this light, we believe that there exists a genuine issue of material fact regarding the imminent collapse of the wall and that Fourth Street has produced sufficient evidence of facts that are essential to its cause of action so that it would require the issue to be submitted to a finder of fact. The order of the Superior Court, reversing the granting of summary judgment in favor of Investors Insurance and remanding for further proceedings, is hereby affirmed.
Notes
. The insurance policy at issue initially excludes payment for loss or damage caused by collapse. Policy, Causes of Loss—Special Form Para. B(2)(k), R.R. 2a. By “Additional Coverage for Collapse," however, the Policy extends specific coverage for risks of loss involving collapse as noted herein. Policy, Para. D. Additional Coverage—Collapse, R.R. 31a.
. Investors Insurance’s position regarding the interpretation of this single term is supported by our case law. Historically, our Court has considered the policy term "collapse” to require the sudden falling together of a structure. Kattelman v. Nat'l Union Fire Ins. Co. of Pittsburgh,
. Albeit not argued in any meaningful fashion by Investors Insurance, we also find that the exclusion from the definition of the term "collapse" for "bulging” does not compel summary judgment in favor of Investors Insurance. Although an insurance contract may state that a collapse did not include settling, cracking, shrinking, bulging, or expansion, it is difficult to imagine a collapse that would not include some of these attributes. Thus, the term "collapse” can reasonably be interpreted as not including minor settling, cracking, or bulging, but includes settling, cracking, or bulging that result in the collapse or, pursuant to the language of the policy provision at issue here, immediate collapse, of the structure. Indeed, coverage under the policy language at issue sub judice would be illusory and contrary to the intent of the parties if bulging was part of an imminent collapse and yet this condition was excluded from coverage. Accord American Concept Ins. Co.,
. Summary judgment is appropriately granted only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law. Pa.R.Civ.P. 1035.2(1). Likewise, summary judgment is proper in cases in which "an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to a cause of action or defense in which a jury trial would require the issues to be submitted to a jury." Pa.R.Civ.P. 1035.2(2). In considering the merits of a motion for summary judgment, a court views the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Jones v. SEPTA,
. We recognize that after the Superior Court determined that the trial court erred in its interpretation of the insurance policy, it was not necessarily proper for the Superior Court to continue and to speak to whether or not there was a genuine issue as to material fact regarding imminent collapse, and instead, should have remanded the matter for consideration by the trial court in light of its determination. Since the Superior Court made conclusions regarding whether there was a genuine issue as to material facts under the proper interpretation of the policy language, we believe that the interests of judicial economy will be best served if we determine whether the Superior Court erred in its
Dissenting Opinion
dissenting.
To the extent that the majority’s decision reflects a broadening of the understanding of the term “collapse” as utilized in property insurance policies to subsume “imminent collapse,” see Majority Opinion, op. at 174 n. 3, I concur with this departure from the existing precedent, which had embraced the narrower view requiring that property or a part of it actually fall down. See Kattelman v. Nat’l Union Fire Ins. Co. of Pittsburgh,
I also differ with the majority’s approach, and that of the Superior Court, in construing the phrase “risks of direct physical loss involving collapse” as extending coverage to protect against future collapse. While I agree that the term “risks of direct physical loss” is intended to reflect a broad form of coverage, its basic function is to extend coverage to a range of fortuitous events (such as fire, lightning, explosion, windstorm, hail, and smoke), see generally Lee R. Russ, 10 Couch on Insurance § 148.50 (2003), but not to protect against losses occasioned in mere anticipation of future events of these sorts. Indeed, in the policy at issue, “risks of direct physical loss” is not an isolated phrase confined to the collapse provision, but rather, stands as the central conception delineating the basic coverage provided, as it is specifically designated as being coterminous with “Covered Causes of Loss.”
Given the central role of the concept of “risks of direct physical loss” to policies affording insurance protection against property damage or loss, I believe that the majority’s construction of the provision as effectively extending coverage to losses and/or expenditures incurred in contemplation of future events may have wider ranging consequences than it may anticipate.
For these reasons, I respectfully dissent.
. The core coverage provision indicates that the insurer "will pay for direct physical loss of or damage to Covered Property” at the premises
In fact, "risks of direct physical loss" is frequently employed by insurers in this way as a broad catch-phrase describing "all-risk” policy coverage (or insurance against all risks not within the defined exclusions and limitations, as opposed to defined-risk coverage). See Russ, 10 Couch on Insurance § 148.50.
. This point is advanced by one commentator as follows:
Of course, the cases finding coverage for a “risk of collapse" are inherently suspect, and turn on a questionable semantic conclusion. These cases suggest that the term ‘risk’ is equivalent to ‘possibility’ or ‘threat,’ and conclude a building suffering from structural impairment (but that has not collapsed) suffers from a ‘risk’ of collapse. In the context of a property policy, however, the term ‘risk’ means 'peril' or ‘hazard,’ not the 'threat' or ‘possibility.’ Indeed, property policies typically cover 'all risks,’ or specified ‘risks’ such as fire, lightning, theft or vandalism. The courts would never suggest that such policies cover every expense associated with a 'threat' or ‘possibility’ of*465 fire, lightning, theft or vandalism, let alone the ‘threat’ or ‘possibility’ of ‘all risks.’
26 No. 15 Ins Litig Rep. 539 (Sep. 10, 2004).
. Under the understanding that the phrase “risk of direct physical loss" is used in the collapse provision as it is everywhere else in the policy, namely, to delineate the range of covered risks, and not to extend coverage for anticipation-related losses and/or expenditures, it is apparent that the additional words “involving collapse" function to describe the particular risk that is the subject matter of the specific-coverage provision.
