Rest Assured, Inc., Appellant, vs. American Motorist Insurance Company, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-98-2302

 

Rest Assured, Inc.,
Appellant,
 
vs.
 
American Motorist Insurance Company,
Respondent.

 

Filed June 29, 1999

Affirmed

Anderson, Judge

Stearns County District Court

File No. C2974791

 

Thomas A. Janson, Schmitt & Janson Law Office, 124 East St. Germain, Post Office Box 1752, St. Cloud, MN 56302-1752 (for appellant)

Janet Stellpflug, Krista Twesme, Aafedt, Forde, Gray & Monson, P.A., 150 South Fifth Street, Suite 3100, Minneapolis, MN 55402 (for respondent)

Considered and decided by Amundson, Presiding Judge, Anderson, Judge, and Foley, Judge.[*]

 

U N P U B L I S H E D   O P I N I O N

ANDERSON

, Judge

Appellant Rest Assured, Inc., challenges adverse summary judgment, asserting there is sufficient direct physical loss and collapse of the roof of its building for coverage of its claim under an insurance policy with respondent American Motorist. Because we conclude that there was not any direct physical loss or damage to unbroken trusses, we affirm.

 

FACTS

Rest Assured sells furniture in the St. Cloud area under the business name Slumberland. Rest Assured purchased an insurance policy from American Motorist to provide coverage for its building. The pertinent portion of the policy provides that American Motorist

will pay for direct physical loss of or damage to Covered Property, caused by collapse of a building insured under this policy, if the collapse is caused by one or more of the following:

* * * *

e) Weight of rain that collects on a roof;

f) * * * if the collapse occurs after construction, remodeling or renovation is complete and is caused in part by a cause of loss listed * * * , we will pay for the loss or damage even if use of defective material or methods in construction, remodeling or renovation contributes to the collapse.

In March 1997, under the strain of heavy snow, the roof of the building sustained more than 30 broken trusses. On inspection, an engineer determined that the grade of material used for all of the trusses (broken and unbroken) was insufficient to carry the tension load and was not as specified in construction drawings. The engineer designed a repair of the broken trusses, as well as a repair for the 300 remaining trusses. Rest Assured hired a local contractor who repaired the 30 or so broken trusses at a cost of $32,000, and the 300 or so remaining trusses at a cost of $52,000. Rest Assured submitted claims to American Motorist for both billings. American Motorist paid the $32,000 for the repair of the broken trusses but denied coverage for the remaining trusses as they "were not physically changed or damaged from a covered cause of loss."

Rest Assured brought a declaratory judgment action seeking coverage for repairs to the unbroken trusses. After cross-motions for summary judgment, the district court entered judgment for American Motorist, holding there was no coverage for the loss claimed by Rest Assured.

 

D E C I S I O N

On appeal from summary judgment, this court determines whether any genuine issue of material fact exists and whether the district court erred as a matter of law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). This court views the evidence in the light most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). Construction of an insurance contract presents a question of law, which this court reviews de novo. Sentinel Management Co. v. New Hampshire Ins. Co., 563 N.W.2d 296, 299 (Minn. App. 1997).

When reviewing an insurance policy, this court must construe the policy according to the terms the parties used, giving the language its ordinary and usual meaning so as to effect the intention of the parties as it appears from the contract. Kabanuk Diversified Invs., Inc. v. Credit Gen. Ins. Co., 553 N.W.2d 65, 70 (Minn. App. 1996), review denied (Minn. Oct. 28, 1996). Any doubts as to meaning should be resolved in favor of the insured and against the insurer, who drafted the policy. Caspersen v. Webber, 298 Minn. 93, 98, 213 N.W.2d 327, 330 (1973).

In this case, the policy language indicates that American Motorist will pay for direct physical loss or damage to property caused by a collapse, if the collapse is caused by weight of rain on a roof. Although the policy uses the term rain, the parties do not dispute that the clause includes snow. The policy language also states that American Motorist will pay for direct physical loss or damage even if defective material contributes in part to the collapse.

Rest Assured asserts that the direct physical loss they sustained in March 1997 is not limited to the broken trusses but includes the remaining unbroken trusses. Rest Assured argues that under Sentinel, it is enough if the building's function is seriously impaired or destroyed such that the property is rendered useless. Sentinel dealt with asbestos contamination and held that a tangible injury to the physical structure of a building is not necessary for the building to be sufficiently impaired for coverage. 563 N.W.2d at 300. "‘Direct physical loss' provisions require only that the covered property be injured, not destroyed." Id.

In this case, however, we fail to see how the unbroken trusses were injured, tangibly or otherwise, in March 1997 under the weight of snow on the roof. We do not believe the direct physical loss or damage required by the policy language includes construction defects alone. Indeed, because the policy language contemplates instances in which construction defects might partially contribute to a covered injury, the suggestion that construction defects alone could constitute a covered injury is inconsistent with the policy language.

Rest Assured argues that the condition of the defective trusses, coupled with the heavy snow load, constituted a collapse under the policy. It is undisputed that a collapse did occur in March 1997 with regard to the 30 or so trusses that actually broke. The issue is whether that collapse also encompassed the trusses that were undamaged. Rest Assured directs this court to case law from other jurisdictions detailing a majority and minority view as to the meaning of collapse. We need not reach the meaning of the term collapse, however, because we conclude that the unbroken trusses did not suffer any direct physical loss or damage as required by the policy.

 Affirmed.

[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.