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Murray v. State Farm Fire and Casualty
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA January 1998 Term ____________ Nos. 24759 & 24760 ____________ ROBERT L. MURRAY and JANET L. MURRAY, his wife; BERNIE W. REES and JULIE A. REES, his wife; and ROBERT J. WITHROW, Plaintiffs below, Appellees v. STATE FARM FIRE AND CASUALTY COMPANY, a Foreign Corporation; ALLSTATE INSURANCE COMPANY, a Foreign Corporation; Defendants below, Appellants, and ROBERT J. HARRIS, Defendant below, Appellee. ______________________________________________________ Appeal from the Circuit Court of Jackson County Hon. Charles E. McCarty, Judge Civil Action No. 94-C-50 REVERSED AND REMANDED ______________________________________________________ Submitted: April 29, 1998 Filed: July 21, 1998 David P. Cleek, Esq. Ted M. Kanner, Esq. Lou Ann S. Cassell, Esq. The Ted Kanner Law Office McQueen, Harmon, Potter & Cleek, L.C. Charleston, West Virginia Charleston, West Virginia J. Nicholas Barth, Esq. Attorneys for Appellant State Farm Barth, Thompson & George Charleston, West Virginia Brent K. Kesner, Esq. Attorneys for Appellees Tanya M. Kesner, Esq. Murray, Rees and Withrow Linda Gay, Esq. Kesner, Kesner & Bramble Larry L. Skeen, Esq. Charleston, West Virginia Ripley, West Virginia Attorneys for Appellant Allstate Attorney for Appellee Harris JUSTICE STARCHER delivered the Opinion of the Court.

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SYLLABUS BY THE COURT 1. "Language in an insurance policy should be given its plain, ordinary meaning." Syllabus Point 1, Soliva v. Shand, Morahan & Co., Inc., 176 W.Va. 430, 345 S.E.2d 33 (1986). 2. "Whenever the language of an insurance policy provision is reasonably susceptible of two different meanings or is of such doubtful meaning that reasonable minds might be uncertain or disagree as to its meaning, it is ambiguous." Syllabus Point 1, Prete v. Merchants Property Ins. Co. of Indiana, 159 W.Va. 508, 223 S.E.2d 441 (1976). 3. "It is well settled law in West Virginia that ambiguous terms in insurance contracts are to be strictly construed against the insurance company and in favor of the insured." Syllabus Point 4, National Mut. Ins. Co. v. McMahon & Sons, Inc., 177 W.Va. 734, 356 S.E.2d 488 (1987). 4. The plain, ordinary meaning of the word "landslide" in an insurance policy contemplates a sliding down of a mass of soil or rock on or from a steep slope. 5. The plain, ordinary meaning of the word "erosion" in an insurance policy contemplates a natural process that includes weathering, dissolution, abrasion, corrosion and transportation whereby material is removed from the earth's surface. 6. "An insurance company seeking to avoid liability through the operation of an exclusion has the burden of proving the facts necessary to the operation of that exclusion." Syllabus Point 7, National Mut. Ins. Co. v. McMahon & Sons, Inc., 177 W.Va. 734, 356 S.E.2d 488 (1987). 7. When an earth movement exclusion in an insurance policy contains terms not otherwise defined in the policy, and the terms of the exclusion relate to natural events (such as earthquakes or volcanic eruptions), which events, in some instances, may also be attributed to a combination of natural and man-made causes (such as landslides, subsidence or erosion), the terms of the exclusion must be read together and limited to exclude naturally-occurring events rather than man-made events. 8. When examining whether coverage exists for a loss under a first-party insurance policy when the loss is caused by a combination of covered and specifically excluded risks, the loss is covered by the policy if the covered risk was the efficient proximate cause of the loss. No coverage exists for a loss if the covered risk was only a remote cause of the loss, or conversely, if the excluded risk was the efficient proximate cause of the loss. The efficient proximate cause is the risk that sets others in motion. It is not necessarily the last act in a chain of events, nor is it the triggering cause. The efficient proximate cause doctrine looks to the quality of the links in the chain of causation. The efficient proximate cause is the predominating cause of the loss. 9. "With respect to insurance contracts, the doctrine of reasonable expectations is that the objectively reasonable expectations of applicants and intended beneficiaries regarding the terms of insurance contracts will be honored even though painstaking study of the policy provisions would have negated those expectations." Syllabus Point 8, National Mut. Ins. Co. v. McMahon & Sons, Inc., 177 W.Va. 734, 356 S.E.2d 488 (1987). 10. An insurance policy provision providing coverage for a "sudden and accidental loss" or an "accidental direct physical loss" to insured property requires only that the property be damaged, not destroyed. Losses covered by the policy, including those rendering the insured property unusable or uninhabitable, may exist in the absence of structural damage to the insured property. Starcher, Justice: The appellants and defendants below, State Farm Fire and Casualty Company ("State Farm") and Allstate Insurance Company ("Allstate"), appeal an order of the Circuit Court of Jackson County granting summary judgment to several homeowners in a dispute concerning policy exclusions in two homeowners' insurance policies. The policyholders' homes were damaged by rocks falling from the highwall of a 40-year old abandoned rock quarry situated next to the homes. The policyholders' insurance carriers denied coverage, claiming that the applicable insurance policies excluded losses caused by "landslides" and "erosion." The circuit court concluded that the policies did not exclude from coverage losses caused by "rockfalls" and "weathering," and that the plaintiffs' losses were the result of those events. The circuit court held that the plaintiffs were entitled to coverage under the policies. After reviewing the record, we conclude that questions of material fact exist concerning whether coverage exists under both policies. We reverse the circuit court's order granting summary judgment and remand the case for trial. I. Factual Background
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The plaintiff-appellees in this case -- Robert and Janet Murray, Bernie and Julie Rees, and Robert Withrow -- are the owners of three adjacent properties on Spring Street in Ripley, West Virginia. The plaintiffs' homes were constructed on their properties in the 1970's. Immediately adjacent to the rear of the three houses is a man-made highwall standing nearly 50 feet high. This vertical highwall is the result of quarrying operations conducted in the 1950's. The highwall is allegedly located on property owned by defendant- appellee Robert B. Harris. On February 22, 1994, several large boulders and rocks fell off the highwall and onto the houses owned by plaintiffs Murray and Withrow, causing extensive damage. The house owned by plaintiffs Mr. and Mrs. Rees was not damaged by rocks. However, firemen compelled all three families to leave their homes because of the possibility that additional rocks could fall, and turned off all electricity and water. An engineer who examined the highwall several days later concluded that further rockfalls would "continue to occur, some with potentially disastrous results."See footnote 1 1 None of the three families has lived in their homes since February 22, 1994.See footnote 2 2 Several engineers and geologists examined the property and highwall in the following weeks. Each gave, to some extent, an opinion that what occurred on Spring Street was primarily a "rockfall" and not a "landslide," because no "sliding" was involved: a layer of shale supporting a layer of sandstone "weathered," removing support for the sandstone, and sandstone blocks broke loose and dropped onto the plaintiffs' homes.See footnote 3 3 One expert said that he thought of a rockfall as "almost a vertical displacement free-falling through the air off of a cliff, a highwall, an escarpment." However, several of the experts conceded that rock falls are considered to be a type of landslide, and are accepted as a sub-category of a landslide; and they further agreed that erosion contributed to the moving of the rocks in the instant case. Furthermore, there is evidence in the record that negligent construction of the highwall behind the plaintiffs' residences, namely the cutting of the rock face at a near vertical angle, contributed to the rockfall. Expert George A. Hall indicated that "the design of the cut-slope on Spring Street did not meet standards which you would reasonably and normally expect for civil engineering purposes of designing cut-slopes." He also said that had proper civil engineering techniques been used when the highwall was created, the danger of a fall like the one that occurred would not be present. Plaintiffs Murray and Rees filed claims for the losses to their homes with their homeowner's insurance carrier, defendant State Farm. Plaintiff Withrow filed a similar claim with his insurance carrier, defendant Allstate. Insurance agents notified the plaintiffs that State Farm and Allstate would not cover the losses, citing to numerous policy provisions and exclusions, including an exclusion for losses caused by landslide or erosion. The plaintiffs then filed the instant lawsuit against defendants Allstate and State Farm alleging breach of contract and bad faith. The plaintiffs also sued defendant Harris for nuisance, trespass, and failing to protect the plaintiffs' property from the "dangerous, artificial manmade condition existing on the defendant's property[.]" Defendant State Farm filed a counterclaim against the plaintiffs seeking a declaratory judgment regarding State Farm's obligations under its policies. The plaintiffs and defendants State Farm and Allstate filed motions for summary judgment concerning coverage under the disputed insurance policies. Through a letter ruling on January 3, 1997 and a subsequent order on March 17, 1997, the circuit court granted summary judgment to the plaintiffs. The circuit court held that the rockfall "is a loss covered under the plaintiffs' respective insurance policies." The court also held that whether the plaintiffs' damages were caused by a rockfall, and the extent of those damages, were issues to be determined by a jury. State Farm and Allstate now appeal the circuit court's order. II. Standard of Review This appeal arises from the circuit court's granting of partial summary judgment to the plaintiff. Our review is de novo. Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). In reviewing summary judgment, this Court will apply the same test that the circuit court should have used initially, and must determine whether "it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963). In this case we are primarily asked to review the circuit court's interpretation of an insurance contract. In Payne v. Weston, 195 W.Va. 502, 506-7, 466 S.E.2d 161, 165-66 (1995), we discussed the

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applicable standard of review in such cases, stating that "[t]he interpretation of an insurance contract, including the question of whether the contract is ambiguous, is a legal determination which, like the court's summary judgment, is reviewed de novo on appeal." "Determination of the proper coverage of an insurance contract when the facts are not in dispute is a question of law." Pacific Indemnity Co. v. Linn, 766 F.2d 754, 760 (3d Cir. 1985). When a court interprets an insurance policy, the "[l]anguage in an insurance policy should be given its plain, ordinary meaning." Syllabus Point 1, Soliva v. Shand, Morahan & Co., Inc., 176 W.Va. 430, 345 S.E.2d 33 (1986). "Where the provisions of an insurance policy contract are clear and unambiguous they are not subject to judicial construction or interpretation, but full effect will be given to the plain meaning intended." Syllabus, Keffer v. Prudential Ins. Co. of America, 153 W.Va. 813, 172 S.E.2d 714 (1970). However, "[w]henever the language of an insurance policy provision is reasonably susceptible of two different meanings or is of such doubtful meaning that reasonable minds might be uncertain or disagree as to its meaning, it is ambiguous." Syllabus Point 1, Prete v. Merchants Property Ins. Co. of Indiana, 159 W.Va. 508, 223 S.E.2d 441 (1976). "It is well settled law in West Virginia that ambiguous terms in insurance contracts are to be strictly construed against the insurance company and in favor of the insured." Syllabus Point 4, National Mut. Ins. Co. v. McMahon & Sons, Inc., 177 W.Va. 734, 356 S.E.2d 488 (1987). With these principles in mind, we undertake a plenary review of the disputed policy language to determine whether the plaintiffs' homeowners' policies from defendants Allstate and State Farm provide coverage in the factual situation presented. III. Discussion Defendants Allstate and State Farm provided the plaintiffs with "all-risk" homeowner's insurance policies.See footnote 4 4 Under an all-risk policy, recovery is allowed for all losses arising from any fortuitous cause, unless the policy contains an express provision excluding the loss from coverage. Essex House v. St. Paul Fire & Marine Ins. Co., 404 F.Supp. 978, 987 (S.D. Ohio 1975). See generally, J. Draper, Coverage Under All-Risk Insurance, 30 A.L.R.5th 170 (1995). Both Allstate and State Farm contend that the losses suffered by the plaintiffs are barred from coverage by express policy provisions excluding losses resulting from "earth movement, including but not limited to . . . landslide . . . [or] erosion[.]" The defendants challenge the circuit court's order on four grounds. First, both defendants challenge the circuit court's summary judgment order finding that coverage existed under the policies because the plaintiffs' losses were the result of a "rockfall" caused by "weathering," and not excluded by policy provisions regarding "landslide" and "erosion." Second, both defendants argue that the earth movement exclusions are clear and unambiguous, and should therefore not be construed but instead applied to exclude coverage for the plaintiffs. Third, defendant State Farm argues that even if the earth movement exclusion could be construed as ambiguous, an extensive "lead-in" clause in its policy clarifies any ambiguity and excludes any coverage as to plaintiffs Murray and Rees. Lastly, both defendants argue that the plaintiffs cannot recover for the total loss of their homes due to the potential for a future rockfall, but can only recover for the actual physical damage sustained. We address these arguments in turn. A. The Circuit Court's Summary Judgment Order We first address the circuit court's order. While the circuit court's letter ruling and subsequent order are less than perfectly clear, it appears that the circuit court concluded that the boulders that damaged the plaintiffs' homes arose from a "rockfall" rather than a "landslide." Based in part upon the expert testimony in the record, the circuit court construed the policy language strictly against the insurance carriers and found that "the language therein did not include or contemplate a rockfall[.]" The circuit court further referred to expert testimony, apparently to hold that the rockfall was the result of "weathering" as opposed to "erosion," and that the plaintiffs were therefore covered under their homeowners' policies. Defendants Allstate and State Farm first contend that the circuit court erred in finding that a "rockfall" is not included within the definition of "landslide." The defendants cite to Dupps v. Travelers Ins. Co., 80 F.3d 312 (8th Cir. 1996), where the court, addressing a landslide triggered by a sinkhole, stated that "[t]he ordinary meaning of the term 'landslide' includes rocks falling down a bluff. . . . [T]he only reasonable interpretation of the policy prohibits recovery for rocks which have fallen. . . ." 80 F.3d at 314. Similarly, the court in Syllabus Point 4 of Olmstead v. Lumberman's
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Mut. Ins. Co., 22 Ohio St.2d 212, 259 N.E.2d 123 (1970) concluded that "[t]he common ordinary meaning of the word 'landslide' is a sliding down of a mass of soil or rock on a steep slope." We agree with the defendants that the circuit court erred. We hold that the plain, ordinary meaning of the word "landslide" in an insurance policy contemplates a sliding down of a mass of soil or rock on or from a steep slope. See generally, 13A G. Couch, Couch on Insurance 2d 48:180 (1982) ("What Constitutes a Landslide"). Allstate and State Farm also argue that the circuit court erred in concluding that "weathering" is different from "erosion," and therefore any loss resulting from weathering is not excluded from coverage. The Dictionary of Geological Terms defines "erosion" as "the group of processes whereby earth or rock material is loosened or dissolved and removed from any part of the earth's surface," specifying that it includes the processes of "weathering, solution, corrosion and transportation." The American Heritage Dictionary also includes within its definition of erosion the "natural processes, including weathering, dissolution, abrasion, corrosion and transportation, by which material is removed from the earth's surface." We again agree that the circuit court erred. We hold that the plain, ordinary meaning of the word "erosion" in an insurance policy contemplates a natural process that includes weathering, dissolution, abrasion, corrosion and transportation whereby material is removed from the earth's surface. Applying these definitions to the circuit court's order, it is clear that the circuit court's granting of partial summary judgment to the plaintiffs was incorrect. A naturally- occurring "rockfall" is included within the common definition of "landslide," and the process of "weathering" to rock is included as a component of the natural process of erosion. We further hold that the circuit court erred in finding that as a matter of law coverage existed under the policies by applying these definitions. However, as discussed below substantial questions of fact remain to be resolved concerning the existence of coverage. B. Earth Movement Exclusion Both insurance policies in this case contain exclusions for "earth movement." The policy issued by Allstate excludes coverage for any loss resulting from: 2. Earth movement, including, but not limited to, earthquake, volcanic eruption, landslide, subsidence, mud flow, sinkhole, erosion, or the sinking, rising, shifting, expanding, bulging, cracking, settling or contracting of the earth. This exclusion applies whether or not the earth movement is combined with water. Similarly, the policy issued by State Farm excludes coverage for losses resulting from: b. Earth Movement, meaning the sinking, rising, shifting, expanding or contracting of earth, all whether combined with water or not. Earth movement includes but is not limited to earthquake, landslide, mudflow, sinkhole, subsidence and erosion. When a policyholder shows that a loss occurred while an insurance policy was in force, but the insurance company seeks to avoid liability through the operation of an exclusion, the insurance company has the burden of proving the exclusion applies to the facts in the case. Syllabus Point 7, National Mut. Ins. Co. v. McMahon & Sons, Inc., 177 W.Va. 734, 356 S.E.2d 488 (1987). "Where the policy language involved is exclusionary, it will be strictly construed against the insurer in order that the purpose of providing indemnity not be defeated." Syllabus Point 5, Id. Both of the earth movement exclusions in this case refer to "earth movement" including, but not limited to "earthquake," "volcanic eruption," "landslide," "subsidence," "mud flow," "sinkhole," "erosion," "sinking," "shifting," or "settling." None of these terms is further defined in the insurance policies. The defendant insurance companies argue that the facts in this case show that the rocks and earthen debris that fell on the plaintiffs' homes constitute a "landslide" caused by "erosion," an event within the earth movement exclusions. The plaintiffs, however, argue that the facts show the damage to their homes was caused by the negligent creation of the highwall in the 1950's and its negligent maintenance by defendant Harris today, two events that would be covered by the policies. On the one hand, the exclusions cited in the defendants' policies could bar coverage for solely natural events such as earthquakes, volcanic eruptions, and sinkholes. On the other hand, the same exclusions refer to events which could be man-made, such as subsidence or earth

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movement caused by equipment or a broken water line. Or, as alleged in this case, earth movement could be caused by both man and nature over a period of time, such as landslides, mudflows, or the earth sinking, shifting, or settling. Because the policy language is reasonably susceptible to different meanings, we believe that the earth movement exclusions in the insurance policies at issue are ambiguous, and must have a more limited meaning than that assigned to it by the defendants. The majority of courts that have considered earth movement exclusions have found them to be ambiguous.See footnote 5 5 Having found the clause to be ambiguous, courts have used two methods of policy construction to examine whether coverage exists or is excluded under the earth movement exclusion. First, courts have applied two doctrines of construction, ejusdem generis and noscitur a sociis, to limit the application of the earth movement exclusion to natural, catastrophic events, rather than man-made events. Second, courts have examined the particular causes of the loss presented by the policyholder, and although an excluded event (such as earth movement) may have been a concurring or contributing cause of a loss, courts have allowed policyholders to recover under an insurance policy if the proximate cause of the loss was an event insured by the policy. We believe that both approaches are applicable in this case.See footnote 6 6 We therefore examine exclusions in the instant case using the same two approaches. First, having determined that the earth movement exclusions at issue in this case are ambiguous, we apply the construction principles of ejusdem generis and noscitur a sociis. Under the doctrine of ejusdem generis, "[w]here general words are used in a contract after specific terms, the general words will be limited in their meaning or restricted to things of like kind and nature with those specified." Syllabus Point 4, Jones v. Island Creek Coal Co., 79 W.Va. 532, 91 S.E. 391 (1917). The phrase noscitur a sociis literally means "it is known from its associates," and the doctrine implies that the meaning of a general word is or may be known from the meaning of accompanying specific words. See Syllabus Point 4, Wolfe v. Forbes, 159 W.Va. 34, 217 S.E.2d 899 (1975). The doctrines are similar in nature, and their application holds that in an ambiguous phrase mixing general words with specific words, the general words are not construed broadly but are restricted to a sense analogous to the specific words. In the seminal case of Wyatt v. Northwestern Mutual Ins. Co. of Seattle, 304 F.Supp. 781 (D.Minn. 1969), the district court considered a summary judgment motion where an insurance company sought, through the operation of an earth movement exclusion, to avoid liability for losses caused by the negligence of a contractor excavating land adjacent to the policyholder's home. While holding that the exclusionary language was intended to remove from coverage losses resulting from natural causes and natural phenomena, such as earthquakes, the court concluded that questions of fact remained as to whether the movement of earth that damaged the policyholder's house was caused by the actions of third parties. The court reasoned that the earth movement exclusion was created by insurance companies . . . to relieve the insurer from occasional major disasters which are almost impossible to predict and thus to insure against. There are earthquakes or floods which cause a major catastrophe and wreak damage to everyone in a large area rather than one individual policyholder. When such happens, the very basis upon which insurance companies operate is said to be destroyed. When damage is so widespread no longer can insurance companies spread the risk and offset a few or the average percentage of losses by many premiums. Looking at the special exclusionary clause in the policy here in question, it seems to cover situations where one single event could adversely affect a large number of policyholders. . . . All of these are phenomena likely to affect great numbers of people when they occur. This gives some force to the view that the various exclusions were not intended to cover the situation as here where "earth movement" occurred under a single dwelling, allegedly due to human action of third persons in the immediate vicinity of the damage. 304 F.Supp. at 783. We believe that similar reasoning underlies the exclusions in this case. Examining the exclusionary terms used by Allstate and State Farm in their context, and applying the rule that ambiguities must be resolved in favor of the insured, we conclude that both earth movement exclusions must be read to refer only to phenomena resulting from natural, rather than man-made, forces. Therefore, when an earth movement exclusion in an insurance policy contains terms not otherwise defined in the policy, and the terms of the exclusion relate to natural events (such as earthquakes or volcanic eruptions), which events, in some instances, may also be attributed to a combination of natural and man-made causes (such as landslides, subsidence or erosion), the terms of the exclusion must be read together and limited to exclude naturally-occurring events rather than man-made events. The second approach consistently taken by courts in construing insurance policies is that for coverage to exist under an insurance policy, policyholders are required to prove that the efficient proximate cause of the loss was an
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insured risk.See footnote 7 7 For example, in Huntington, Ashland & Big Sandy Transportation Co. v. Western Assur. Co. of Toronto, Ont., 61 W.Va. 324, 57 S.E. 140 (1907), an insurance policy on the policyholder's steamboat excluded coverage for "loss, damage or expense resulting from stranding or grounding, unless caused by stress of weather." The evidence suggested that heavy, gusting winds caused the steamboat to run aground. This Court held that high wind was a "stress of weather," and whether wind was a proximate cause of the loss was a question of fact for the jury. 61 W.Va. at 32526, 57 S.E. at 140. The Court sustained a jury verdict for the policyholder. Another example is LaBris v. Western National Ins. Co., 133 W.Va. 731, 59 S.E.2d 236 (1950), where a policyholder sought to recover for the collapse of the roof of a tire repair shop under a policy insuring against "direct loss by windstorm." We stated that in order for a policyholder to recover under such a policy, "wind must be an efficient cause of the loss, and the qualifying word 'direct' in referring to the cause of the loss means 'proximate or immediate.'" 133 W.Va. at 739, 59 S.E.2d at 240. We stated in Syllabus Point 2 that "it must be established by a preponderance of the evidence that a windstorm of itself was sufficient to, and did cause the alleged damage to the property insured, though there may be other contributing causes." We concluded that there was no coverage for the policyholder because the evidence showed that the roof collapse was caused by water accumulating on the roof, and not wind. In accord, Lewis v. St. Paul Fire & Marine Ins. Co., 155 W.Va. 178, 182 S.E.2d 44 (1971) (no coverage because policyholder failed to prove damage to building was a "direct loss by windstorm"). The scope of coverage under an all-risk homeowner's policy includes all risks except those risks specifically excluded by the policy. A majority of jurisdictions use the "efficient proximate cause" doctrineSee footnote 8 8 in adjudicating coverage issues for all-risk insurance policies, where both a covered and a non-covered peril contribute to a loss.See footnote 9 9 When a loss is caused by a combination of covered and specifically excluded risks, the loss is covered if the covered risk was the proximate cause of the loss. Two leading treatises support this position. According to Couch on Insurance: In determining cause of loss for purposes of fixing insurance liability, if there is evidence of concurrent causes for the damage, the "proximate cause" to which the loss is to be attributed is the dominant, efficient one that sets the other causes in operation; causes which are incidental are not proximate, even though they may be nearer the loss in both time and place. Where it is said that the cause to be sought is the direct and proximate cause, it is not meant that the cause or agency which is nearest in point of time or place to the result is necessarily to be chosen, since there may be a dominant cause even though concurrent or remote in point of time or place. L. Russ, 7 Couch on Insurance 3d

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