Andrew-Riverside Presbyterian Church, Appellant, vs. Guide-One Mutual Insurance Company, Respondent.

Andrew-Riverside Presbyterian Church, Appellant, vs. Guide-One Mutual Insurance Company, Respondent. A04-1533, Court of Appeals Unpublished, April 26, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1533

 

Andrew-Riverside Presbyterian Church,

Appellant,

 

vs.

 

Guide-One Mutual Insurance Company,

Respondent.

 

Filed April 26, 2005

Affirmed

Halbrooks, Judge

 

 

Hennepin County District Court

File No. 03-7596

 

 

Britton D. Weimer, Blackwell Igbanugo, P.A., 3601 West 76th Street, Suite 250, Minneapolis, MN 55435 (for appellant)

 

Jon A. Hanson, Mary J. Baskfield, Karin R.Z. Buelow, Hanson, Lulic & Krall, 700 Northstar East, 608 Second Avenue South, Minneapolis, MN 55402 (for respondent)

 

 

            Considered and decided by Halbrooks, Presiding Judge, Toussaint, Chief Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            In this coverage dispute, appellant challenges the district court's grant of summary judgment to respondent.  Appellant also argues that the district court erred by denying appellant's motion for partial summary judgment on the ground that appellant did not present evidence that the wall's collapse and respondent's denial of coverage exceeded the cost of repair so as to constitute a constructive total loss under the policy.  Because we conclude that there is no genuine issue of material fact as to whether appellant was aware of the decay of the walls of the church and that the district court did not err as a matter of law, we affirm.

FACTS

            Appellant Andrew-Riverside Presbyterian Church was built in the 1890s.  In 1980, appellant bought property insurance from respondent Guide-One Mutual Insurance Company, formerly known as Preferred Risk Group, to insure the building.  The terms of the insurance policy provide that respondent will not pay for loss or damage caused by "[s]ettling, cracking, shrinking or expansion" or "[c]ollapse, except as provided below in the Additional Coverage for Collapse."  The policy further states that respondent will pay for "direct physical loss or damage" to the insured property if the collapse is caused by "hidden decay."  On August 11, 2002, a portion of the north wall of the building collapsed.  Thus, the coverage issue became focused on whether or not the collapse was as a result of hidden decay.

            Appellant requested multiple inspections of the church's structure in the 1980s and 1990s.  In 1982, appellant retained a consulting firm of structural engineers, Meyer, Borgman and Johnson, Inc. (MBJ), to inspect the nave, bell tower, and basement of the church.  MBJ's April 9, 1982 report stated that an inspection conducted in March 1982 revealed, in part, that "[t]he condition of the beam-arches and the end columns are significant indicators that the roof support system in the northerly section of the nave has become noticeably weakened" and "outward bowing of the [west] wall has weakened its capacity to support roof loads and resist wind forces."  The report added that

[a]ll four limestone walls of the bell tower have major horizontal cracks at two levels. . . .  A system of four steel tie rods located about 40 ft. above the church floor and which were meant to hold the four tower walls together was installed at some time in the past.  Despite this reinforcement the tower is in a dangerous condition.

 

MBJ recommended that a more thorough examination of the building be undertaken and that "temporary strengthening of the structure be made without delay."  A letter from Miller Dunwiddie Architects, Inc. to appellant, dated July 26, 1982, discussed a preservation and planning study to include a structural analysis of the building and "recommended procedures to correct any structural deficiencies." 

            The record indicates that some cabling was installed on the northeast corner and around the north wall of the church in 1990.  Mortar was patched on the building and newspaper was stuffed into gaps in the walls at the northeast corner.  But there is no evidence of any additional structural analysis until October 2001.

            At that time, Jack Meyer, the structural engineer who performed the 1982 inspection, described the church's condition as follows:

This is a very dangerous situation.  The stone on approximately the lower six feet of wall is badly deteriorated, not fastened to any backup structure, and in danger of collapsing.  This applies to the east side along the sidewalk, and the same situation exists on the north side.  If the lower six feet should collapse it could bring the entire stone face down with it.

 

                        . . . .

 

With that stone face being in as bad of shape as it is we can't take responsibility for doing any work to those walls or to realistically put a price together to stabilize those walls.  Even a small amount of vibration could bring the whole wall crashing down.

 

            The same month, MBJ sent Miller Dunwiddie Architects a letter that was copied to appellant.  This letter also noted the dangerous condition of the building:

All walls of the church building are in great need of repair and stabilization.  The Platteville limestone façade has separated from the backup wall system because of the characteristic of this stone to warp away from its original position over time.  The proposed bracing system should be regarded as only a stop-gap measure to add limited protection against collapse of the wall.

 

An immediate investigation of the church walls and a program of stabilization are essential to the safety of building users and passersby.

 

            Building Restoration Corporation (BRC) advised the church's pastor that emergency repairs were necessary on the building's east wall and that injury and serious structural damage could occur if the wall collapsed.  BRC's proposal to appellant included photographs of the bulging north wall.  BRC installed buttresses to temporarily support the east wall.  Church elder Scott Severson inspected the building with the BRC representative and subsequently advised the other elders of the severe deterioration of the walls at the July 2002 session meeting.  Minutes of earlier session meetings in October 2001, February 2002, and May 2002 also reflect the elders' discussion of the walls' condition.

In October 2001, appellant contacted Greg Helland, appellant's Guide-One agent, to ask whether the insurance policy would cover repairs to the east wall.  Helland stated that the policy would not cover the repairs to the east wall because there had not been a "collapse" due to an insured peril. 

Despite appellant's efforts to stabilize the church walls, on August 11, 2002, the north wall collapsed into the church.  On August 12, 2002, appellant notified respondent of the problem.  Respondent retained a structural engineer to inspect the church and determine the cause of the collapse.  The engineer concluded that the limestone on the exterior walls had expanded with moisture absorption over time.  He noted that multiple signs of deterioration were open and obvious, including distress that was more pronounced on the east and north walls of the Great Hall complex.  Based on this analysis, respondent denied the claim. 

            Appellant filed a complaint and motion for a temporary restraining order against respondent in May 2003, seeking temporary and permanent injunctions, consequential damages, attorney fees, and costs and disbursements.  Appellant claimed breach of duty of good faith and fair dealing; breach of fiduciary duty; negligent, reckless, and/or intentional misrepresentation; and violation of the Minnesota Consumer Fraud Act.  Respondent filed a counterclaim, alleging misrepresentation, non-cooperation of appellant during investigation of the claim, and knowledge of the previous decay.  The district court denied appellant's motion for temporary injunctive relief.  Appellant replied to respondent's counterclaim by asserting the additional claims of mutual mistake, misrepresentation, and tortious interference and by seeking the additional remedy of reformation of appellant's insurance policies.  Respondent requested judgment on the insurance-coverage claim, dismissal of appellant's additional claims, and an award of attorney fees.  Both parties moved for summary judgment.  The district court determined that, while the insurance policy covered hidden decay, it did not cover appellant's losses because the decay that caused the church wall's collapse was not hidden.  Therefore, the district court granted respondent's motion for summary judgment.  The district court also stated that appellant did not present evidence that the wall's collapse and respondent's denial of coverage caused a constructive total loss or that the only option was to demolish the entire church.  Thus, the district court denied appellant's motion for partial summary judgment.  This appeal follows.

D E C I S I O N

            "On appeal from summary judgment, we consider (1) whether there are any genuine issues of material fact for trial and (2) whether the [district] court[] erred in [its] application of the law."  N. States Power Co. v. Minn. Metro. Council, 684 N.W.2d 485, 491 (Minn. 2004).  Interpretation of an insurance policy's language is subject to de novo review.  Jorgensen v. Knutson, 662 N.W.2d 893, 897 (Minn. 2003). 

I.

            Appellant argues that it did not have actual knowledge of any internal decay, and thus the decay was hidden.  Respondent contends that because the walls were cracked and bulging and because appellant was aware of structural problems with the building, the decay was not hidden.  The district court determined that "the decay that caused the collapse of the church building was not hidden, but was open and obvious." 

            If "hidden decay" caused the collapse, then any loss or damage is covered by appellant's insurance policy.  But the policy does not define "hidden" or "hidden decay."  When the language of an insurance contract is ambiguous, the language should be accorded its plain and ordinary meaning.  Ill. Farmers Ins. Co. v. Glass Serv. Co., 683 N.W.2d 792, 799 (Minn. 2004).  Here, both parties and the district court define "hidden" as "out of sight" or "concealed." 

            This record is replete with evidence that the deteriorating condition of the church's walls was visible.  In 1982, a structural-engineering firm informed appellant that outward bowing of the west wall and inward bowing of the south wall weakened the walls and impaired the building's ability to resist strong winds.  In 2001, appellant received notice of the building's dangerous condition from three separate sources:  Crawford-Merz Construction Company, MBJ, and BRC.  These sources informed appellant that the church walls created "a very dangerous situation," that "a small amount of vibration could bring the whole wall crashing down," and that "[a]ll walls of the church building are in great need of repair and stabilization."  It is undisputed that appellant received documented reports of the walls' decay in 1982 and was warned of the dangerous condition of the walls again in 2001.

Appellant argues that it was aware only of the symptoms of the decay, but not of the decay itself.  But a church elder stated that in July 2002 appellant knew the north and east walls were bulging and that appellant expected the north wall to continue "to deteriorate another 10 percent a year."  The church's pastor also stated that in October 2001, an architectural firm had informed him that the church's structure was deteriorating.  The 2001 letter from MBJ to appellant specifically stated the cause of the decay:  "The Platteville limestone façade has separated from the backup wall system because of the characteristic of this stone to warp away from its original position over time." 

In support of its position that it was not aware of the decay, appellant notes that respondent inspected the church building in 1993 and that its inspection report did not note any problems with the church's walls.  Following that inspection, appellant obtained a three-percent reduction in its premiums as a result of changing the coverage from replacement-cost coverage to actual-cash-value coverage.  But an insurer is not required to examine and/or appraise insured buildings.  See Reedon of Faribault, Inc. v. Fidelity & Guar. Ins. Underwriters, Inc., 418 N.W.2d 488, 492 (Minn. 1988).  Here, although respondent did conduct an inspection of the church, appellant has presented no evidence that either the inspection or the three-percent reduction in the premium was in any way related to the building's structural soundness.

Despite appellant's assertions, the evidence provided to the district court clearly establishes that appellant was aware that the building had major structural defects:  the roof support system and walls were noticeably weakened, the bell tower was in a dangerous state, and a small amount of vibration could cause one of the walls to fall down.  Because of the multiple warnings that appellant received between 1982 and the north wall's collapse in 2002, we conclude that there is no genuine issue of material fact as to whether the building's decay was hidden.

II.

Appellant makes the additional argument that the district court erred in ruling that there was no insurable "collapse" of the building structure in October 2001, when appellant called respondent concerning the deteriorating east wall.  Appellant's argument is based on cases in other jurisdictions that have defined "collapse" to include "any substantial impairment of the structural integrity of a building."  Beach v. Middlesex Mut. Assurance Co., 532 A.2d 1297, 1300 (Conn. 1987).  But, as the district court concluded, resolution of this issue does not depend on the definition of the term "collapse."  Here, appellant's policy specifically excluded all damage resulting from collapse but for certain causes, one of which was hidden decay.  Further, the policy stated that collapse did not include settling, cracking, shrinkage, expansion, or bulging.  Therefore, the inquiry is again focused on whether the decay was hidden.  As we have discussed, it was not.

III.

            Finally, appellant argues that the building was a constructive total loss, triggering respondent's obligation under the policy to pay the policy limits.  Appellant asserts that the cost of repairing the building exceeded both the policy limits and the cost of replacing the building.  Because appellant has not provided any evidence to support its assertions, the district court did not err by denying appellant's motion for partial summary judgment on this issue.

            Affirmed.