Indiana Insurance Co. v. Liaskos
Annotate this Case
THIRD DIVISION
June 24, 1998
No. 1-97-2527
INDIANA INSURANCE COMPANY, )
a Foreign Corporation, )
) APPEAL FROM THE CIRCUIT
Plaintiff/Counter- ) COURT OF COOK COUNTY.
Defendant/Appellee, )
)
v. )
) HONORABLE RONALD RILEY,
JANET F. LIASKOS, ) JUDGE PRESIDING.
)
Defendant/Counter- )
Plaintiff/Appellant. )
JUSTICE GORDON DELIVERED THE OPINION OF THE COURT:
Indiana Insurance Company (Indiana), the plaintiff, brought
a declaratory judgment action against its insured, Janet F.
Liaskos, the defendant, seeking a declaration that the loss
sustained at Liaskos's home was excluded from coverage under the
water damage exclusion. Liaskos filed a four-count counterclaim
in which she alleged, inter alia, that her loss was covered under
the exception to the water damage exclusion which extended
coverage to collapse of a building or part of a building even
though caused by water. At the conclusion of a stipulated bench
trial on Indiana's declaratory judgment action, the court entered
judgment in favor of Indiana finding that there had been no
collapse. The court also dismissed Liaskos's counterclaims.
Liaskos appeals contending that a collapse can be deemed to occur
where a building does not fall or lose its character. For the
reasons discussed below, we affirm.
BACKGROUND FACTS
A. Insurance Policy Provisions
The homeowners policy issued by Indiana to Liaskos insured
against physical loss to the dwelling or structure and damage to
personal property in the dwelling. That policy contained two
separate exclusion provisions that dealt with the damage
encountered in the instant case. The first provision, captioned
Section 1, Perils Insured Against, stated that the policy did not
insure against loss:
"1. caused by:
***
b. *** pressure or weight to a foundation,
retaining wall or bulkhead; ***
* * *
f. (1) wear and tear, marring,
deterioration;
* * *
(6) settling, cracking, shrinking,
bulging or expansion of pavements, patios,
foundations, walls, floors, roofs or
ceilings."
The second provision, captioned Section I, Exclusions, set forth
in the policy and various amendatory endorsements, provided in
pertinent part as follows:
"SECTION I -- EXCLUSIONS
We do not insure for loss caused directly or indirectly
by any of the following. Such loss is excluded
regardless of any other cause or event contributing
concurrently or in any sequence to the loss.
* * *
3. Water Damage, meaning:
a. flood, surface water, waves, tidal water,
overflow of a body of water, or spray from
any of these, whether or not driven by wind;
c. water below the surface of the ground,
including water which exerts pressure on or
seeps or leaks through a building, sidewalk,
driveway, foundation, swimming pool or other
structure. If such water causes the collapse
of a building or any part of a building, we
cover loss caused by the collapse. Collapse
does not including [sic] settling, cracking,
shrinking, bulging or expansion."
The policy also contained a homeowners protective
endorsement which covered physical loss caused by sewer back-up
subject to a limit of $1,000. That provision stated:
"Back-Up of Sewers or Drains. We cover direct physical
loss caused by water:
a. which backs up through sewers or drains; or
b. which enters into and overflows from within a
sump pump, sump pump well or other type of
system designed to remove subsurface water
which is drained from the foundation area.
This coverage does not apply if the loss is caused by
your negligence.
We will pay up to $1,000 on that part of any loss that
exceeds $250. No other deductible applies to this
coverage."
II. Facts
The facts show that at 3:00 a.m. on June 28, 1993, Liaskos
awoke to a loud exploding noise. A slab in the basement floor of
her home cracked and pushed up allowing water to gush in, filling
the basement almost to the floor joists. Cracks appeared on the
first floor interior walls and on the exterior masonry, and a
crater formed in the ground on the outside of the home.
At the bench trial, the parties waived opening statements
and stipulated to the admission as evidence of a videotape of the
house taken on August 23, 1993, 72 photographs and two engineers'
reports, one from each party.[fn1] No testimony was presented.
In the reports which were admitted, experts retained by Indiana
and Liaskos agreed that pressure exerted by water below the
surface of the ground caused Liaskos's loss. They disagreed,
however, as to whether the support structure of Liaskos's home
had moved. Indiana's consulting engineer concluded that there
had been a "hydrostatic upheaval." He opined that "the
structural foundation walls and footings were sound and did not
move when the floor heaved up."
Liaskos's structural engineer opined that increased water
pressure in the Calumet City sewer system overstressed the
plumbing at the insured's property, causing the slab in the
basement floor to be "pushed up and cracked" due to water
pressure from broken pipes. In addition, Liaskos's expert stated
that a crack was evident in the northwest corner foundation wall,
that cracks existed in most door and passageways on the first
floor interior and in the exterior masonry adjacent to the front
door. He opined:
"The extreme volume of water that resulted from the
plumbing leak also caused some undermining of the
footings supporting the columns that support the first
floor. This has resulted in the cracks in the walls on
the first floor."
He also opined that the water caused some undermining of the
exterior footings near a crater that appeared on the outside
northeast corner of the house. He further opined that "cracking
was likely to continue [on the first floor interior walls] until
the footings can accommodate the soil readjustment."
After viewing the evidentiary submissions of the parties and
listening to their argument, the trial court declared that
Liaskos's loss did not meet the collapse exception to the water
damage exclusion in the homeowners insurance policy. In reaching
this conclusion, the trial court found that the pictures
submitted by the parties showed displacement of concrete on the
basement floor and some cracking and settlement causing
"structural damage surface-wise, at least, to the home." The
court also found that the basement was still cognizable, that the
Liaskos's home had not lost its character and that there was no
collapse within the ordinary meaning of the term "collapse"
because there was no evidence of "something being up and then
something going down." It ruled that Indiana was not obligated
to indemnify Liaskos beyond the $1,000 tendered by Indiana in
accordance with the sewer-backup provision of the policy.
DISCUSSION
The sole issue on appeal is whether the loss suffered by
Liaskos fell within the collapse exception to the water damage
exclusion of the homeowners policy issued by Indiana. As set
forth above, the collapse exception contained in the policy
provides coverage for losses sustained when water causes the
collapse of a building or any part of the building. That
exception did not define collapse but stated that collapse did
not include settling, cracking, shrinking, bulging or expansion.
Also, under a separate provision, captioned Perils Insured
Against, the policy stated that it did not insure against loss
caused by "settling, cracking *** of foundations, walls, floors,
roofs or ceilings."
A. Rules of Construction and Standard of Review
Under general rules of construction, where policy provisions
are unambiguous, the court must give the words of the provisions
their plain and ordinary meaning. E.g., Lapham-Hickey Steel
Corp. v. Protection Mutual Insurance Co., 166 Ill. 2d 520, 655 N.E.2d 842 (1995); Caterpillar, Inc. v. Aetna Casualty & Surety
Co., 282 Ill. App. 3d 1065, 668 N.E.2d 1152 (1996). A policy
term is not ambiguous simply because a term is not defined within
the policy. Lapham-Hickey Steel Corp., 166 Ill. 2d 520, 655 N.E.2d 842. In interpreting insurance policies, as with other
contracts, policy provisions are ambiguous only if they are
subject to more than one reasonable construction. E.g., Dungey
v. Haines & Britton, Ltd., 155 Ill. 2d 329, 614 N.E.2d 1205
(1993). Where ambiguous, the terms of a policy must be construed
against the drafter of the policy and in favor of the insured.
E.g., Bruder v. Country Mutual Insurance Co., 156 Ill. 2d 179,
620 N.E.2d 355 (1993); Continental Casualty Co. v. McDowell &
Colantoni, Ltd., 282 Ill. App. 3d 236, 668 N.E.2d 59 (1996).
If the facts are undisputed, the question of whether they
fall within the provisions of an insurance policy is a matter of
interpretation and is strictly a question of law for the court to
decide. United Farm Bureau Mutual Insurance Co. v. Elder, 86 Ill. 2d 339, 427 N.E.2d 127 (1981); Gober v. State Farm Mutual
Automobile Insurance Co., 263 Ill. App. 3d 846, 636 N.E.2d 1016
(1994). In that instance, review is de novo. E.g., Outboard
Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 607 N.E.2d 1204 (1992); Badger Mutual Insurance Co. v. Ostry, 264
Ill. App. 3d 303, 636 N.E.2d 956 (1994). If the facts are also
in dispute, a mixed question of fact and law exists. In that
event, the determinations of fact are treated as questions of
fact while the determination of the law and its application to
the facts are treated as questions of law. Review of those
determinations was explained in Joel R. by Salazar v. Board of
Education, 292 Ill. App. 3d 607, 612-13, 686 N.E.2d 650, 655
(1997) as follows:
"[R]eview of a mixed question of law and fact
necessitates three steps be taken by the appellate
court. The first step in this process is the
establishment of basic, primary or historical facts:
facts in the sense of a recital of external events and
the credibility of their narrators. The second step is
the selection of the applicable legal rule. The third
step *** is the application of the law to fact ***.
The appropriate standards of review for the first
two of the circuit court's determinations--its
establishment of historical facts and its selection of
the applicable law--have long been settled. Questions
of fact, whether determined by a jury or by the circuit
court in a nonjury case, are reviewed under the
deferential, manifest weight of the evidence standard.
[Citation.] Questions of law are reviewed under the
nondeferential, de novo standard. [Citation]."
In the instant case, the central issue is the definition of
the policy term "collapse," clearly an issue of law. As shall be
seen below, any factual disputes in this case are not outcome
determinative because none of the facts would come within any of
the definitions of "collapse" proposed by the parties. Thus, we
are faced only with a question of law for which review is de
novo. Outboard Marine Corp., 154 Ill. 2d 90, 607 N.E.2d 1204;
Joel R. by Salazar, 292 Ill. App. 3d 607, 686 N.E.2d 650.
B. Analysis of the Merits
Indiana urges a narrow definition of "collapse" which
requires a falling in and reduction of the structure into "a mass
of rubbish." It argues that "collapse" requires a sudden
occurrence that causes a structure's basic character to be lost.
In support of this contention for a narrow definition, Indiana
relies heavily on the case of La Salle National Bank v. American
Insurance Co., 14 Ill. App. 3d 1027, 303 N.E.2d 770 (1973)
wherein the court distinguished between "collapse" and
"settling." The casualty insurance policy in that case insured
all risks of direct physical loss or damage from any external
cause subject to the exclusions. Specifically excluded was
damage caused by settling of foundations, walls, floors or
ceilings. The policy did not include the term "collapse." The
insured's loss consisted of cracked walls, sinking floors,
cracked and sagging ceilings, distorted lintels, shifting of
overhead beams and shifting of sinks and urinals mounted on
walls. The insurer denied coverage on the basis that the damage
was caused by settling of the building. The insured argued that
the damage was sustained by a sudden collapse.
The trial court rejected the insured's collapse contention
finding that there was overwhelming evidence, including the
uncontested results of soil borings and the testimony of a single
expert witness that the sinking of the floor in the portion of
the building was caused by a settling within the meaning of the
pertinent exclusionary provision in the policy. The court
stated:
"Plaintiff's argument that the damage was caused by a
'collapse' does not affect this conclusion. It is not
at all clear that characterization of the instant
sinking as a collapse would operate to bring the loss
within the policy since the underlying cause of such
collapse would still be a settling of the supporting
soil and with it, a portion of the building's
foundation and floors. Furthermore, there was no
collapse in the instant case. Illinois law has
determined that the expression 'collapse' has a
distinctive meaning requiring that the loss be sudden
and that the structure's basic character be lost. See
Rubenstein v. Fireman's Fund Ins. Co.[, 339 Ill. App.
404, 90 N.E.2d 289 (1950)]. This did not occur in the
present case." (Emphasis added.) La Salle National
Bank, 14 Ill. App. 3d at 1031-32, 303 N.E.2d at 774.
In Rubenstein, 339 Ill. App. 404, 90 N.E.2d 289 (1950), the
case relied upon in La Salle National Bank, a portion of the
ceiling in the dining room of the insured's home fell damaging
various items of personalty. The insured's policy excluded from
coverage breakage "unless occasioned by *** collapse of building,
*** or other similar casualty." The court affirmed the trial
court's ruling denying coverage finding no collapse or other
similar casualty. In so holding, the court defined the term
"collapse" as follows:
"In the cases wherein the peril 'collapse of building'
has been construed by the courts in various types of
policies of insurance, it has been held that the entire
building must lose its distinctive character as a
building before there is a collapse of the building
within the terms of the policy. *** The court held [in
Teutonia Ins. Co. v. Bonner, 81 Ill. App. 231, 236
(1899)] that there was not a fall of a building, or any
part thereof, stating *** 'In the text books on
insurance, wherever, we find the expression "fallen
buildings" or any equivalent expression, it appears
that the writer had in mind a building that had fallen
"in pieces," "collapsed," or in some form become a
"mere ruin," "mass of rubbish," or "a congeries of
materials;" that it had become in such condition that
it "could not be repaired and still be the same
building."'" Rubenstein, 339 Ill. App. at 409-10, 90 N.E.2d at 291-92.
Liaskos seeks to distinguish La Salle National Bank and
Rubenstein from the instant case based on differing policy
language. She notes that the policy in La Salle National Bank
did not contain the word "collapse" and that the policy in
Rubenstein provided coverage only for "collapse of a building."
She contends that the term "collapse" as used in the policy in
the instant case is more expansive because in addition to
covering collapse of a building it covers collapse of any part of
a building. Liaskos correctly argues that the narrow
interpretation given to the term "collapse" in La Salle National
Bank and Rubenstein, followed by the trial court, is now
considered the minority view expressed in older cases. She urges
that this older view be rejected in favor of the newer majority
view which finds the term "collapse" is "sufficiently ambiguous
to include coverage for any substantial impairment of the
structural integrity of a building." Beach v. Middlesex Mutual
Assurance Co., 205 Conn. 246, 252, 532 A.2d 1297, 1300 (1987).
The modern view has been articulated and defined in a series
of cases from other jurisdictions. In Beach v. Middlesex Mutual
Assurance Co., 205 Conn. 246, 532 A.2d 1297, for example, the
homeowners insurance policy excluded "settling, cracking,
shrinkage, bulging or expansion of pavements, patios,
foundations, walls, floors, roofs or ceilings." Excepted from
that exclusion was "collapse of a building." The loss sustained
in Beach consisted of a crack in a foundation wall which widened
over a period of months causing the wooden support beams on top
of the foundation wall to pull apart. The house never caved in;
the plaintiffs continued to reside in the house; and there had
never been a sudden catastrophe. The foundation wall eventually
tipped over into the basement and was no longer supporting the
house. The trial referee found that "'[g]iven the state of the
structure, eventually the house would have fallen into the
cellar.'" Beach, 205 Conn. at 249, 532 A.2d at 1299. The
insurer, relying on the standard dictionary definition of
"collapse," denied coverage arguing that the term "collapse" was
unambiguous and required a sudden and complete falling in of the
structure.
The Beach court rejected defendant's narrow definition of
"collapse" noting that Webster, Third New International
Dictionary not only defined "collapse" as a sudden, catastrophic
breakdown but also defined it as a breakdown or loss of
structural strength. The court stated:
"If defendant wished to rely on a single facial meaning
of the term 'collapse' as used in its policy, it had
the opportunity expressly to define the term to provide
for the limited usage it now claims to have intended.
*** Read in its entirety, therefore, the
defendant's policy does not unambiguously limit its
liability to a 'collapse' of a sudden and catastrophic
nature.
The result that we reach finds support in the
reasoning of other courts. Although the judicial
decisions elsewhere are divided, the more persuasive
authorities hold that the term 'collapse' is
sufficiently ambiguous to include coverage for any
substantial impairment of the structural integrity of a
building. [Citations.] The cases to the contrary,
which hold that 'collapse' unmistakably connotes a
sudden falling in, loss of shape, or flattening into a
mass of rubble, have come to be in the distinct
minority. [Citations.]" Beach, 205 Conn. at 251-52,
532 A.2d at 1300.
Based upon its expanded definition of "collapse," the court found
the defendant insurer liable even though there was no sudden
catastrophe or actual cave-in and even though the residents
remained in the house. Citing to the trial referee's factual
findings, including the fact that the house eventually would have
fallen into the cellar, the court found substantial impairment of
the structural integrity of the insured's home. Accord Fidelity
& Casualty Co. v. Mitchell, 503 So. 2d 870 (Ala. Civ. App. 1987)
(finding collapse where destruction of structural integrity of
building when stairway and surrounding area moved eight inches
away from primary walls and damage to main body of support such
that parts of house would not support weight of a person);
Whispering Creek Condominium Owner Ass'n v. Alaska National
Insurance Co., 774 P.2d 176 (Alaska 1989) (finding collapse where
ceiling joists had deteriorated and roof in immediate danger of
collapse due to hidden decay); Campbell v. Norfolk & Dedham
Mutual Fire Insurance Co., 682 A.2d 933 (R.I. 1996) (applying
majority view of collapse where house did not fall but
uninhabitable because nineteen-foot section of basement
foundation wall crumbled and fell causing unlevel floors and
cracked walls in upper part of house). Cf. Thornewell v. Indiana
Lumbermens Mutual Insurance Co., 33 Wis. 2d 344, 147 N.W.2d 317
(1967) (applying broader definition but finding no coverage
because bulge in basement wall did not affect structural function
or substantially impair structural integrity of home).
It is clear from these cases that under the majority view
the term "collapse" does not require complete destruction or
falling in of the building or a part thereof nor would it require
that the loss result from a sudden catastrophic occurrence.
Beach, 205 Conn. 246, 532 A.2d 1297. A collapse will be deemed
to have occurred where a falling in is imminent (e.g., Whispering
Creek Condominium Owner Ass'n, 774 P.2d 176) or where there is
any substantial impairment of the structural integrity of the
building (e.g., Mitchell, 503 So. 2d 870; Beach, 205 Conn. 246,
532 A.2d 1297). Thornewell, 33 Wis. 2d 344, 147 N.E.2d 317.
At this juncture, we note our preference for the majority
view rather than the narrow interpretation given by the courts in
La Salle National Bank and Rubenstein. We are impressed with the
fact that substantial impairment to the structural integrity of a
building comes within the dictionary definition of the term
"collapse" and should be sufficient to trigger coverage under the
term "collapse." To require a complete falling in of a structure
gives undue ascendancy to semantic casuistry. Moreover, given
the fact that the dictionary definition of "collapse" makes both
parties' interpretations of the term "collapse" reasonable, we,
as the court in Beach, find it necessary to adopt the broader
definition under the rule of construction that ambiguous policy
terms are to be construed against the drafter and in favor of the
insured (see Bruder, 156 Ill. 2d 179, 620 N.E.2d 355; Continental
Casualty Co., 282 Ill. App. 3d 236, 668 N.E.2d 59 (ambiguous
policy terms are to be construed against the drafter)). See
Beach, 205 Conn. at 250-53, 532 A.2d at 1299-1300 (citing
dictionary definitions and finding term "collapse" ambiguous).
We also distinguish La Salle National Bank on the basis that
the policy in that case did not contain the term "collapse" and
the court's definition of that term therefore occurred in its
dictum. Rubenstein is distinguished because, unlike the policy
in the instant case which covers collapse of part of a building,
the policy in that case required collapse of an entire building.
The policy language covering collapse of a building or part of a
building exists under newer property damage policies and
indicates the insurer's intent to expand coverage.
However, even under the more liberal definition of
"collapse" espoused under the majority rule, the facts in the
instant case are insufficient. Here there is no evidence
establishing imminent collapse or substantial impairment of the
structural integrity of Liaskos's home. The evidence showed that
pressure exerted by water below the surface of the ground caused
a basement slab to crack and push up allowing water to gush into
the basement. According to Liaskos's expert, a crack was evident
in the north and west foundation wall, cracks occurred in the
exterior masonry wall adjacent to the front door and in the
interior door and passageways in the first floor. He opined that
cracks in the exterior masonry and in the first floor were caused
by some undermining in the footings supporting the columns that
supported the first floor and some undermining of the exterior
footings. Liaskos's expert also opined that the cracking on the
first floor would continue until the footings could accommodate
the soil readjustment. The insurer's expert engineer disagreed
as to whether there had been movement in the foundation. He
opined that "the structural foundation walls and footings were
sound and did not move when the floor heaved up."
While the evidence is contradictory as to whether the
footings moved, the factual determination of that conflict is not
dispositive since neither expert concluded that the structural
foundation was unsound or that there was a breakdown or loss of
structural strength in Liaskos's home. At best, the reports of
the experts and the pictures in the supplemental record
established that there was a shifting of the footings which
caused minor cracks in the exterior masonry near the front door,
the walls of the interior doorways and a crack in the north and
west corner of the basement well. The evidence did not suggest
that any of the cracks, especially the crack in the basement
foundation wall, had widened or would continue to widen over
time. The evidence did not show that the basement foundation
wall had moved and separated from the rest of the foundation,
that it was no longer supporting Liaskos's home or that its
movement caused Liaskos's home to be uninhabitable. See
Thornewell, 33 Wis. 2d 344, 147 N.E.2d 317 (applying majority
view but finding that bulge in basement wall did not materially
impair basic structure or substantial integrity; wall could
perform its structural function). This is to be contrasted with
the facts in Campbell, 682 A.2d 933, wherein the basement
foundation wall crumbled causing the house to shift, the floors
to become unlevel and the house to become uninhabitable; in
Whispering Creek Condominium Owner Ass'n, 774 P.2d 176, wherein
the ceiling joists had deteriorated and the roof was in immediate
danger of collapse; in Beach, 205 Conn. 246, 532 A.2d 1297, where
the basement foundation was no longer supporting the house and
where the house eventually would have fallen into the basement;
and in Mitchell, 503 So. 2d 870, where the staircase had
separated from the primary walls, the main body of support was
damaged and parts of the house could not support the weight of a
person. In reaching this conclusion, we reject Liaskos's
contention that collapse is established by the fact that her home
was rendered uninhabitable one day after the occurrence. While
uninhabitability is a factor to be considered in determining
whether a collapse occurred, the uninhabitability must be due to
the soundness of the structure of the building. See, Campbell,
682 P.2d 933. Cf. Whispering Creek Condominium Owner Assoc., 774 P.2d 176 (where abatement notice issued by governmental agency
due to imminent danger of roof falling). The record shows that
the uninhabitability of Liaskos's home was not due to a
structural impediment but due to a temporary presence of water
and lack of electrical power.
Moreover, to extend coverage in the instant case where there
is no substantial impairment but mere cracking not only fails to
comport with the definition of "collapse" even under the more
liberal modern view but would do violence to the explicit
language of the policy which excludes loss caused by "settling,
cracking, shrinking, bulging or expansion of *** foundations,
walls, floors, roofs or ceilings." The denial of coverage for
settling and cracking was specifically reaffirmed in the policy
in connection with the water damage exclusion wherein the policy
recited that collapse, as an exception to that exclusion, did not
include "settling, cracking, shrinking, bulging or expansion."
While we do believe that the exclusions for cracking would not
preclude coverage when that cracking causes substantial
impairment to the structural integrity of a building or part of a
building,[fn2] those exclusions would most certainly preclude
coverage in the instant case where the cracking was not shown to
affect the structural integrity of defendant's home.
For the foregoing reasons, we affirm the judgment of the
Circuit Court of Cook County.
Affirmed.
LEAVITT, P.J. and BURKE, J., concur.
[fn1]Neither the videotape nor most of the photographs
submitted to the trial court were included in the record on
appeal. In a motion taken with the case, Liaskos moved to
supplement the record with 14 photographs, labeled Trial Exhibits
2 through 9, which were reviewed by the trial court. Those
exhibits were represented as photographs taken by Indiana's
adjuster. We grant Liaskos's motion to supplement the record as
well as her motion to file her reply brief instanter.
[fn2]Along these lines, we note that the policies in
Whispering Creek Condominium Owner Ass'n, 774 P.2d 176, and
Thornewell, 33 Wis. 2d 344, 147 N.W.2d 317, contained no
exclusion for settling, cracking, shrinking, bulging or
expansion. The policies in Mitchell, 503 So. 2d 870, and
Campbell, 682 A.2d 933, like the policy in the instant case,
stated that collapse did not include settling, cracking,
shrinking, bulging or expansion. However, the losses for which
coverage was sought in those cases did not involve any of those
excluded conditions. The policy interpreted in Beach contained
an exclusion for "settling, cracking, shrinkage, bulging or
expansion of *** foundations, walls, floors, roofs or ceilings."
That exclusion was followed by modifying language stating "unless
*** collapse of a building *** not otherwise excluded ensues."
Beach, 205 Conn. at 250, 532 A.2d at 1299. The Beach court
construed that provision "to exclude loss related to 'settling,
cracking, shrinkage, bulging or expansion,' only so long as
'collapse' does not ensue." Beach, 205 Conn. at 251, 532 A.2d at
1300.
June 24, 1998
No. 1-97-2527
INDIANA INSURANCE COMPANY, )
a Foreign Corporation, )
) APPEAL FROM THE CIRCUIT
Plaintiff/Counter- ) COURT OF COOK COUNTY.
Defendant/Appellee, )
)
v. )
) HONORABLE RONALD RILEY,
JANET F. LIASKOS, ) JUDGE PRESIDING.
)
Defendant/Counter- )
Plaintiff/Appellant. )
JUSTICE GORDON DELIVERED THE OPINION OF THE COURT:
Indiana Insurance Company (Indiana), the plaintiff, brought
a declaratory judgment action against its insured, Janet F.
Liaskos, the defendant, seeking a declaration that the loss
sustained at Liaskos's home was excluded from coverage under the
water damage exclusion. Liaskos filed a four-count counterclaim
in which she alleged, inter alia, that her loss was covered under
the exception to the water damage exclusion which extended
coverage to collapse of a building or part of a building even
though caused by water. At the conclusion of a stipulated bench
trial on Indiana's declaratory judgment action, the court entered
judgment in favor of Indiana finding that there had been no
collapse. The court also dismissed Liaskos's counterclaims.
Liaskos appeals contending that a collapse can be deemed to occur
where a building does not fall or lose its character. For the
reasons discussed below, we affirm.
BACKGROUND FACTS
A. Insurance Policy Provisions
The homeowners policy issued by Indiana to Liaskos insured
against physical loss to the dwelling or structure and damage to
personal property in the dwelling. That policy contained two
separate exclusion provisions that dealt with the damage
encountered in the instant case. The first provision, captioned
Section 1, Perils Insured Against, stated that the policy did not
insure against loss:
"1. caused by:
***
b. *** pressure or weight to a foundation,
retaining wall or bulkhead; ***
* * *
f. (1) wear and tear, marring,
deterioration;
* * *
(6) settling, cracking, shrinking,
bulging or expansion of pavements, patios,
foundations, walls, floors, roofs or
ceilings."
The second provision, captioned Section I, Exclusions, set forth
in the policy and various amendatory endorsements, provided in
pertinent part as follows:
"SECTION I -- EXCLUSIONS
We do not insure for loss caused directly or indirectly
by any of the following. Such loss is excluded
regardless of any other cause or event contributing
concurrently or in any sequence to the loss.
* * *
3. Water Damage, meaning:
a. flood, surface water, waves, tidal water,
overflow of a body of water, or spray from
any of these, whether or not driven by wind;
c. water below the surface of the ground,
including water which exerts pressure on or
seeps or leaks through a building, sidewalk,
driveway, foundation, swimming pool or other
structure. If such water causes the collapse
of a building or any part of a building, we
cover loss caused by the collapse. Collapse
does not including [sic] settling, cracking,
shrinking, bulging or expansion."
The policy also contained a homeowners protective
endorsement which covered physical loss caused by sewer back-up
subject to a limit of $1,000. That provision stated:
"Back-Up of Sewers or Drains. We cover direct physical
loss caused by water:
a. which backs up through sewers or drains; or
b. which enters into and overflows from within a
sump pump, sump pump well or other type of
system designed to remove subsurface water
which is drained from the foundation area.
This coverage does not apply if the loss is caused by
your negligence.
We will pay up to $1,000 on that part of any loss that
exceeds $250. No other deductible applies to this
coverage."
II. Facts
The facts show that at 3:00 a.m. on June 28, 1993, Liaskos
awoke to a loud exploding noise. A slab in the basement floor of
her home cracked and pushed up allowing water to gush in, filling
the basement almost to the floor joists. Cracks appeared on the
first floor interior walls and on the exterior masonry, and a
crater formed in the ground on the outside of the home.
At the bench trial, the parties waived opening statements
and stipulated to the admission as evidence of a videotape of the
house taken on August 23, 1993, 72 photographs and two engineers'
reports, one from each party.[fn1] No testimony was presented.
In the reports which were admitted, experts retained by Indiana
and Liaskos agreed that pressure exerted by water below the
surface of the ground caused Liaskos's loss. They disagreed,
however, as to whether the support structure of Liaskos's home
had moved. Indiana's consulting engineer concluded that there
had been a "hydrostatic upheaval." He opined that "the
structural foundation walls and footings were sound and did not
move when the floor heaved up."
Liaskos's structural engineer opined that increased water
pressure in the Calumet City sewer system overstressed the
plumbing at the insured's property, causing the slab in the
basement floor to be "pushed up and cracked" due to water
pressure from broken pipes. In addition, Liaskos's expert stated
that a crack was evident in the northwest corner foundation wall,
that cracks existed in most door and passageways on the first
floor interior and in the exterior masonry adjacent to the front
door. He opined:
"The extreme volume of water that resulted from the
plumbing leak also caused some undermining of the
footings supporting the columns that support the first
floor. This has resulted in the cracks in the walls on
the first floor."
He also opined that the water caused some undermining of the
exterior footings near a crater that appeared on the outside
northeast corner of the house. He further opined that "cracking
was likely to continue [on the first floor interior walls] until
the footings can accommodate the soil readjustment."
After viewing the evidentiary submissions of the parties and
listening to their argument, the trial court declared that
Liaskos's loss did not meet the collapse exception to the water
damage exclusion in the homeowners insurance policy. In reaching
this conclusion, the trial court found that the pictures
submitted by the parties showed displacement of concrete on the
basement floor and some cracking and settlement causing
"structural damage surface-wise, at least, to the home." The
court also found that the basement was still cognizable, that the
Liaskos's home had not lost its character and that there was no
collapse within the ordinary meaning of the term "collapse"
because there was no evidence of "something being up and then
something going down." It ruled that Indiana was not obligated
to indemnify Liaskos beyond the $1,000 tendered by Indiana in
accordance with the sewer-backup provision of the policy.
DISCUSSION
The sole issue on appeal is whether the loss suffered by
Liaskos fell within the collapse exception to the water damage
exclusion of the homeowners policy issued by Indiana. As set
forth above, the collapse exception contained in the policy
provides coverage for losses sustained when water causes the
collapse of a building or any part of the building. That
exception did not define collapse but stated that collapse did
not include settling, cracking, shrinking, bulging or expansion.
Also, under a separate provision, captioned Perils Insured
Against, the policy stated that it did not insure against loss
caused by "settling, cracking *** of foundations, walls, floors,
roofs or ceilings."
A. Rules of Construction and Standard of Review
Under general rules of construction, where policy provisions
are unambiguous, the court must give the words of the provisions
their plain and ordinary meaning. E.g., Lapham-Hickey Steel
Corp. v. Protection Mutual Insurance Co., 166 Ill. 2d 520, 655 N.E.2d 842 (1995); Caterpillar, Inc. v. Aetna Casualty & Surety
Co., 282 Ill. App. 3d 1065, 668 N.E.2d 1152 (1996). A policy
term is not ambiguous simply because a term is not defined within
the policy. Lapham-Hickey Steel Corp., 166 Ill. 2d 520, 655 N.E.2d 842. In interpreting insurance policies, as with other
contracts, policy provisions are ambiguous only if they are
subject to more than one reasonable construction. E.g., Dungey
v. Haines & Britton, Ltd., 155 Ill. 2d 329, 614 N.E.2d 1205
(1993). Where ambiguous, the terms of a policy must be construed
against the drafter of the policy and in favor of the insured.
E.g., Bruder v. Country Mutual Insurance Co., 156 Ill. 2d 179,
620 N.E.2d 355 (1993); Continental Casualty Co. v. McDowell &
Colantoni, Ltd., 282 Ill. App. 3d 236, 668 N.E.2d 59 (1996).
If the facts are undisputed, the question of whether they
fall within the provisions of an insurance policy is a matter of
interpretation and is strictly a question of law for the court to
decide. United Farm Bureau Mutual Insurance Co. v. Elder, 86 Ill. 2d 339, 427 N.E.2d 127 (1981); Gober v. State Farm Mutual
Automobile Insurance Co., 263 Ill. App. 3d 846, 636 N.E.2d 1016
(1994). In that instance, review is de novo. E.g., Outboard
Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 607 N.E.2d 1204 (1992); Badger Mutual Insurance Co. v. Ostry, 264
Ill. App. 3d 303, 636 N.E.2d 956 (1994). If the facts are also
in dispute, a mixed question of fact and law exists. In that
event, the determinations of fact are treated as questions of
fact while the determination of the law and its application to
the facts are treated as questions of law. Review of those
determinations was explained in Joel R. by Salazar v. Board of
Education, 292 Ill. App. 3d 607, 612-13, 686 N.E.2d 650, 655
(1997) as follows:
"[R]eview of a mixed question of law and fact
necessitates three steps be taken by the appellate
court. The first step in this process is the
establishment of basic, primary or historical facts:
facts in the sense of a recital of external events and
the credibility of their narrators. The second step is
the selection of the applicable legal rule. The third
step *** is the application of the law to fact ***.
The appropriate standards of review for the first
two of the circuit court's determinations--its
establishment of historical facts and its selection of
the applicable law--have long been settled. Questions
of fact, whether determined by a jury or by the circuit
court in a nonjury case, are reviewed under the
deferential, manifest weight of the evidence standard.
[Citation.] Questions of law are reviewed under the
nondeferential, de novo standard. [Citation]."
In the instant case, the central issue is the definition of
the policy term "collapse," clearly an issue of law. As shall be
seen below, any factual disputes in this case are not outcome
determinative because none of the facts would come within any of
the definitions of "collapse" proposed by the parties. Thus, we
are faced only with a question of law for which review is de
novo. Outboard Marine Corp., 154 Ill. 2d 90, 607 N.E.2d 1204;
Joel R. by Salazar, 292 Ill. App. 3d 607, 686 N.E.2d 650.
B. Analysis of the Merits
Indiana urges a narrow definition of "collapse" which
requires a falling in and reduction of the structure into "a mass
of rubbish." It argues that "collapse" requires a sudden
occurrence that causes a structure's basic character to be lost.
In support of this contention for a narrow definition, Indiana
relies heavily on the case of La Salle National Bank v. American
Insurance Co., 14 Ill. App. 3d 1027, 303 N.E.2d 770 (1973)
wherein the court distinguished between "collapse" and
"settling." The casualty insurance policy in that case insured
all risks of direct physical loss or damage from any external
cause subject to the exclusions. Specifically excluded was
damage caused by settling of foundations, walls, floors or
ceilings. The policy did not include the term "collapse." The
insured's loss consisted of cracked walls, sinking floors,
cracked and sagging ceilings, distorted lintels, shifting of
overhead beams and shifting of sinks and urinals mounted on
walls. The insurer denied coverage on the basis that the damage
was caused by settling of the building. The insured argued that
the damage was sustained by a sudden collapse.
The trial court rejected the insured's collapse contention
finding that there was overwhelming evidence, including the
uncontested results of soil borings and the testimony of a single
expert witness that the sinking of the floor in the portion of
the building was caused by a settling within the meaning of the
pertinent exclusionary provision in the policy. The court
stated:
"Plaintiff's argument that the damage was caused by a
'collapse' does not affect this conclusion. It is not
at all clear that characterization of the instant
sinking as a collapse would operate to bring the loss
within the policy since the underlying cause of such
collapse would still be a settling of the supporting
soil and with it, a portion of the building's
foundation and floors. Furthermore, there was no
collapse in the instant case. Illinois law has
determined that the expression 'collapse' has a
distinctive meaning requiring that the loss be sudden
and that the structure's basic character be lost. See
Rubenstein v. Fireman's Fund Ins. Co.[, 339 Ill. App.
404, 90 N.E.2d 289 (1950)]. This did not occur in the
present case." (Emphasis added.) La Salle National
Bank, 14 Ill. App. 3d at 1031-32, 303 N.E.2d at 774.
In Rubenstein, 339 Ill. App. 404, 90 N.E.2d 289 (1950), the
case relied upon in La Salle National Bank, a portion of the
ceiling in the dining room of the insured's home fell damaging
various items of personalty. The insured's policy excluded from
coverage breakage "unless occasioned by *** collapse of building,
*** or other similar casualty." The court affirmed the trial
court's ruling denying coverage finding no collapse or other
similar casualty. In so holding, the court defined the term
"collapse" as follows:
"In the cases wherein the peril 'collapse of building'
has been construed by the courts in various types of
policies of insurance, it has been held that the entire
building must lose its distinctive character as a
building before there is a collapse of the building
within the terms of the policy. *** The court held [in
Teutonia Ins. Co. v. Bonner, 81 Ill. App. 231, 236
(1899)] that there was not a fall of a building, or any
part thereof, stating *** 'In the text books on
insurance, wherever, we find the expression "fallen
buildings" or any equivalent expression, it appears
that the writer had in mind a building that had fallen
"in pieces," "collapsed," or in some form become a
"mere ruin," "mass of rubbish," or "a congeries of
materials;" that it had become in such condition that
it "could not be repaired and still be the same
building."'" Rubenstein, 339 Ill. App. at 409-10, 90 N.E.2d at 291-92.
Liaskos seeks to distinguish La Salle National Bank and
Rubenstein from the instant case based on differing policy
language. She notes that the policy in La Salle National Bank
did not contain the word "collapse" and that the policy in
Rubenstein provided coverage only for "collapse of a building."
She contends that the term "collapse" as used in the policy in
the instant case is more expansive because in addition to
covering collapse of a building it covers collapse of any part of
a building. Liaskos correctly argues that the narrow
interpretation given to the term "collapse" in La Salle National
Bank and Rubenstein, followed by the trial court, is now
considered the minority view expressed in older cases. She urges
that this older view be rejected in favor of the newer majority
view which finds the term "collapse" is "sufficiently ambiguous
to include coverage for any substantial impairment of the
structural integrity of a building." Beach v. Middlesex Mutual
Assurance Co., 205 Conn. 246, 252, 532 A.2d 1297, 1300 (1987).
The modern view has been articulated and defined in a series
of cases from other jurisdictions. In Beach v. Middlesex Mutual
Assurance Co., 205 Conn. 246, 532 A.2d 1297, for example, the
homeowners insurance policy excluded "settling, cracking,
shrinkage, bulging or expansion of pavements, patios,
foundations, walls, floors, roofs or ceilings." Excepted from
that exclusion was "collapse of a building." The loss sustained
in Beach consisted of a crack in a foundation wall which widened
over a period of months causing the wooden support beams on top
of the foundation wall to pull apart. The house never caved in;
the plaintiffs continued to reside in the house; and there had
never been a sudden catastrophe. The foundation wall eventually
tipped over into the basement and was no longer supporting the
house. The trial referee found that "'[g]iven the state of the
structure, eventually the house would have fallen into the
cellar.'" Beach, 205 Conn. at 249, 532 A.2d at 1299. The
insurer, relying on the standard dictionary definition of
"collapse," denied coverage arguing that the term "collapse" was
unambiguous and required a sudden and complete falling in of the
structure.
The Beach court rejected defendant's narrow definition of
"collapse" noting that Webster, Third New International
Dictionary not only defined "collapse" as a sudden, catastrophic
breakdown but also defined it as a breakdown or loss of
structural strength. The court stated:
"If defendant wished to rely on a single facial meaning
of the term 'collapse' as used in its policy, it had
the opportunity expressly to define the term to provide
for the limited usage it now claims to have intended.
*** Read in its entirety, therefore, the
defendant's policy does not unambiguously limit its
liability to a 'collapse' of a sudden and catastrophic
nature.
The result that we reach finds support in the
reasoning of other courts. Although the judicial
decisions elsewhere are divided, the more persuasive
authorities hold that the term 'collapse' is
sufficiently ambiguous to include coverage for any
substantial impairment of the structural integrity of a
building. [Citations.] The cases to the contrary,
which hold that 'collapse' unmistakably connotes a
sudden falling in, loss of shape, or flattening into a
mass of rubble, have come to be in the distinct
minority. [Citations.]" Beach, 205 Conn. at 251-52,
532 A.2d at 1300.
Based upon its expanded definition of "collapse," the court found
the defendant insurer liable even though there was no sudden
catastrophe or actual cave-in and even though the residents
remained in the house. Citing to the trial referee's factual
findings, including the fact that the house eventually would have
fallen into the cellar, the court found substantial impairment of
the structural integrity of the insured's home. Accord Fidelity
& Casualty Co. v. Mitchell, 503 So. 2d 870 (Ala. Civ. App. 1987)
(finding collapse where destruction of structural integrity of
building when stairway and surrounding area moved eight inches
away from primary walls and damage to main body of support such
that parts of house would not support weight of a person);
Whispering Creek Condominium Owner Ass'n v. Alaska National
Insurance Co., 774 P.2d 176 (Alaska 1989) (finding collapse where
ceiling joists had deteriorated and roof in immediate danger of
collapse due to hidden decay); Campbell v. Norfolk & Dedham
Mutual Fire Insurance Co., 682 A.2d 933 (R.I. 1996) (applying
majority view of collapse where house did not fall but
uninhabitable because nineteen-foot section of basement
foundation wall crumbled and fell causing unlevel floors and
cracked walls in upper part of house). Cf. Thornewell v. Indiana
Lumbermens Mutual Insurance Co., 33 Wis. 2d 344, 147 N.W.2d 317
(1967) (applying broader definition but finding no coverage
because bulge in basement wall did not affect structural function
or substantially impair structural integrity of home).
It is clear from these cases that under the majority view
the term "collapse" does not require complete destruction or
falling in of the building or a part thereof nor would it require
that the loss result from a sudden catastrophic occurrence.
Beach, 205 Conn. 246, 532 A.2d 1297. A collapse will be deemed
to have occurred where a falling in is imminent (e.g., Whispering
Creek Condominium Owner Ass'n, 774 P.2d 176) or where there is
any substantial impairment of the structural integrity of the
building (e.g., Mitchell, 503 So. 2d 870; Beach, 205 Conn. 246,
532 A.2d 1297). Thornewell, 33 Wis. 2d 344, 147 N.E.2d 317.
At this juncture, we note our preference for the majority
view rather than the narrow interpretation given by the courts in
La Salle National Bank and Rubenstein. We are impressed with the
fact that substantial impairment to the structural integrity of a
building comes within the dictionary definition of the term
"collapse" and should be sufficient to trigger coverage under the
term "collapse." To require a complete falling in of a structure
gives undue ascendancy to semantic casuistry. Moreover, given
the fact that the dictionary definition of "collapse" makes both
parties' interpretations of the term "collapse" reasonable, we,
as the court in Beach, find it necessary to adopt the broader
definition under the rule of construction that ambiguous policy
terms are to be construed against the drafter and in favor of the
insured (see Bruder, 156 Ill. 2d 179, 620 N.E.2d 355; Continental
Casualty Co., 282 Ill. App. 3d 236, 668 N.E.2d 59 (ambiguous
policy terms are to be construed against the drafter)). See
Beach, 205 Conn. at 250-53, 532 A.2d at 1299-1300 (citing
dictionary definitions and finding term "collapse" ambiguous).
We also distinguish La Salle National Bank on the basis that
the policy in that case did not contain the term "collapse" and
the court's definition of that term therefore occurred in its
dictum. Rubenstein is distinguished because, unlike the policy
in the instant case which covers collapse of part of a building,
the policy in that case required collapse of an entire building.
The policy language covering collapse of a building or part of a
building exists under newer property damage policies and
indicates the insurer's intent to expand coverage.
However, even under the more liberal definition of
"collapse" espoused under the majority rule, the facts in the
instant case are insufficient. Here there is no evidence
establishing imminent collapse or substantial impairment of the
structural integrity of Liaskos's home. The evidence showed that
pressure exerted by water below the surface of the ground caused
a basement slab to crack and push up allowing water to gush into
the basement. According to Liaskos's expert, a crack was evident
in the north and west foundation wall, cracks occurred in the
exterior masonry wall adjacent to the front door and in the
interior door and passageways in the first floor. He opined that
cracks in the exterior masonry and in the first floor were caused
by some undermining in the footings supporting the columns that
supported the first floor and some undermining of the exterior
footings. Liaskos's expert also opined that the cracking on the
first floor would continue until the footings could accommodate
the soil readjustment. The insurer's expert engineer disagreed
as to whether there had been movement in the foundation. He
opined that "the structural foundation walls and footings were
sound and did not move when the floor heaved up."
While the evidence is contradictory as to whether the
footings moved, the factual determination of that conflict is not
dispositive since neither expert concluded that the structural
foundation was unsound or that there was a breakdown or loss of
structural strength in Liaskos's home. At best, the reports of
the experts and the pictures in the supplemental record
established that there was a shifting of the footings which
caused minor cracks in the exterior masonry near the front door,
the walls of the interior doorways and a crack in the north and
west corner of the basement well. The evidence did not suggest
that any of the cracks, especially the crack in the basement
foundation wall, had widened or would continue to widen over
time. The evidence did not show that the basement foundation
wall had moved and separated from the rest of the foundation,
that it was no longer supporting Liaskos's home or that its
movement caused Liaskos's home to be uninhabitable. See
Thornewell, 33 Wis. 2d 344, 147 N.E.2d 317 (applying majority
view but finding that bulge in basement wall did not materially
impair basic structure or substantial integrity; wall could
perform its structural function). This is to be contrasted with
the facts in Campbell, 682 A.2d 933, wherein the basement
foundation wall crumbled causing the house to shift, the floors
to become unlevel and the house to become uninhabitable; in
Whispering Creek Condominium Owner Ass'n, 774 P.2d 176, wherein
the ceiling joists had deteriorated and the roof was in immediate
danger of collapse; in Beach, 205 Conn. 246, 532 A.2d 1297, where
the basement foundation was no longer supporting the house and
where the house eventually would have fallen into the basement;
and in Mitchell, 503 So. 2d 870, where the staircase had
separated from the primary walls, the main body of support was
damaged and parts of the house could not support the weight of a
person. In reaching this conclusion, we reject Liaskos's
contention that collapse is established by the fact that her home
was rendered uninhabitable one day after the occurrence. While
uninhabitability is a factor to be considered in determining
whether a collapse occurred, the uninhabitability must be due to
the soundness of the structure of the building. See, Campbell,
682 P.2d 933. Cf. Whispering Creek Condominium Owner Assoc., 774 P.2d 176 (where abatement notice issued by governmental agency
due to imminent danger of roof falling). The record shows that
the uninhabitability of Liaskos's home was not due to a
structural impediment but due to a temporary presence of water
and lack of electrical power.
Moreover, to extend coverage in the instant case where there
is no substantial impairment but mere cracking not only fails to
comport with the definition of "collapse" even under the more
liberal modern view but would do violence to the explicit
language of the policy which excludes loss caused by "settling,
cracking, shrinking, bulging or expansion of *** foundations,
walls, floors, roofs or ceilings." The denial of coverage for
settling and cracking was specifically reaffirmed in the policy
in connection with the water damage exclusion wherein the policy
recited that collapse, as an exception to that exclusion, did not
include "settling, cracking, shrinking, bulging or expansion."
While we do believe that the exclusions for cracking would not
preclude coverage when that cracking causes substantial
impairment to the structural integrity of a building or part of a
building,[fn2] those exclusions would most certainly preclude
coverage in the instant case where the cracking was not shown to
affect the structural integrity of defendant's home.
For the foregoing reasons, we affirm the judgment of the
Circuit Court of Cook County.
Affirmed.
LEAVITT, P.J. and BURKE, J., concur.
[fn1]Neither the videotape nor most of the photographs
submitted to the trial court were included in the record on
appeal. In a motion taken with the case, Liaskos moved to
supplement the record with 14 photographs, labeled Trial Exhibits
2 through 9, which were reviewed by the trial court. Those
exhibits were represented as photographs taken by Indiana's
adjuster. We grant Liaskos's motion to supplement the record as
well as her motion to file her reply brief instanter.
[fn2]Along these lines, we note that the policies in
Whispering Creek Condominium Owner Ass'n, 774 P.2d 176, and
Thornewell, 33 Wis. 2d 344, 147 N.W.2d 317, contained no
exclusion for settling, cracking, shrinking, bulging or
expansion. The policies in Mitchell, 503 So. 2d 870, and
Campbell, 682 A.2d 933, like the policy in the instant case,
stated that collapse did not include settling, cracking,
shrinking, bulging or expansion. However, the losses for which
coverage was sought in those cases did not involve any of those
excluded conditions. The policy interpreted in Beach contained
an exclusion for "settling, cracking, shrinkage, bulging or
expansion of *** foundations, walls, floors, roofs or ceilings."
That exclusion was followed by modifying language stating "unless
*** collapse of a building *** not otherwise excluded ensues."
Beach, 205 Conn. at 250, 532 A.2d at 1299. The Beach court
construed that provision "to exclude loss related to 'settling,
cracking, shrinkage, bulging or expansion,' only so long as
'collapse' does not ensue." Beach, 205 Conn. at 251, 532 A.2d at
1300.
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