Opinion
2020-CA-0424-MR
08-06-2021
BONNIE SAUER AND ANTHONY SAUER APPELLANTS v. KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY APPELLEE
BRIEF FOR APPELLANT: Jeffrey L. Schumacher Maysville, Kentucky BRIEF FOR APPELLEE: John J. Ellis Morehead, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MASON CIRCUIT COURT HONORABLE STOCKTON B. WOOD, JUDGE ACTION NO. 19-CI-00189
BRIEF FOR APPELLANT: Jeffrey L. Schumacher Maysville, KentuckyBRIEF FOR APPELLEE: John J. Ellis Morehead, Kentucky
BEFORE: JONES, MAZE, AND TAYLOR, JUDGES.
OPINION
TAYLOR, JUDGE
Bonnie Sauer and Anthony Sauer (the Sauers) bring this appeal from an Order and Judgment of the Mason Circuit Court entered January 10, 2020, concluding that a homeowner's insurance policy issued by Kentucky Farm Bureau Mutual Insurance Company did not provide coverage for damage to the Sauers' home. We affirm.
The Sauers own a home insured by Kentucky Farm Bureau Mutual Insurance Company (Farm Bureau). In 2019, the Sauers discovered extensive damage to their home that was apparently caused by a hidden termite infestation. The damage was mainly to the back corner of the residence where a bedroom was located. In the bedroom, the floor had dropped six to eight inches from the wall, the wall had pulled away from the ceiling, the exterior siding had buckled, and the floor joists were structurally compromised. The Sauers filed a claim under their homeowner's policy alleging coverage under a provision insuring the home for loss caused by collapse. Farm Bureau denied the claim.
On August 1, 2019, the Sauers filed a complaint against Farm Bureau in the Mason Circuit Court. Therein, the Sauers alleged:
7. That on or about July 3, 2019 the [Sauers] suffered a collapse of a floor and part of a wall of their home, which was found to have been caused by hidden insect damage and decay.
8. That it is undisputed that the collapse of a part of the [Sauers'] home was caused by the damage caused by hidden insect damage to the home.
9. That in direct contravention of the [Sauers'] policy of insurance, which clearly spells out the coverage for collapse of a "building or any part of a building caused" by "hidden decay" or by "hidden insect or vermin damage", the Defendant, Farm Bureau, has denied the [Sauers'] claim for coverage of the damages they have sustained.
Complaint at 3-4. Farm Bureau filed an answer and counterclaim. In the counterclaim, Farm Bureau sought a declaratory judgment that the homeowner's policy did not provide coverage for the damage to the Sauers' home.
Farm Bureau then filed a motion for summary judgment and maintained that the homeowner's policy only provided coverage if the residence had at least partially collapsed. Citing to Thiele v. Kentucky Growers Insurance Company, 522 S.W.3d 198 (Ky. 2017), Farm Bureau argued the undisputed facts demonstrated that the Sauers' home did not collapse within the meaning of the homeowner's policy. As such, Farm Bureau asserted that the homeowner's policy did not provide coverage for the damage to the Sauers' home.
The Sauers filed a response to the motion for summary judgment. In the response, the Sauers cited to the deposition of Anthony concerning the damage to the home:
In late July or early August of 2019, Anthony Sauer was mowing the lawn and noticed "that the siding on the house had buckled". [A. Sauer deposition at page 6]. Anthony Sauer testified that "the floor had collapsed from the wall" at the rear corner of the home where his mother's bedroom was located. [A. Sauer deposition at page 11-12]. The floor had dropped away from the wall and is "free hanging . . . there's nothing holding the bottom of the wall now". [A. Sauer deposition at page 11]. The wall has pulled away from the ceiling. [A. Sauer deposition at page 12]. A contractor came and looked and found that "all the floor joists along the back had been eaten up by termites". [A. Sauer deposition at page 15]. The damage was extensive enough that it was
open to the outside and Anthony Sauer testified that they "put the plastic and 2 x 4s down to keep mice and stuff out of the house . . . where the floor had collapsed from the wall there". [A. Sauer deposition at page 11].
Response to Summary Judgment at 2-3. The Sauers maintained that a portion of their home collapsed within the meaning of the homeowner's policy, thus entitling them to coverage thereunder.
By a January 10, 2020, Order and Judgment, the circuit court granted Farm Bureau's motion for summary judgment. The circuit court concluded that the damage to the Sauers' home did not result in a collapse of any part of the home; therefore, the homeowner's policy issued by Farm Bureau did not provide coverage. This appeal follows.
To begin, summary judgment is proper where there exists no material issue of fact and movant is entitled to judgment as a matter of law. Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 482-83 (Ky. 1991). All facts and inferences therefrom are to be viewed in a light most favorable to the nonmoving party. Id. at 480.
The Sauers contend the circuit court erred by rendering summary judgment in favor of Farm Bureau. The Sauers claim that a portion of their home collapsed as the floor joists "were eaten away by hidden insect infestation" leading to a loss of support for the flooring. Sauers' Brief at 8-9. Additionally, the Sauers point out that a wall in the bedroom pulled away from the roof leaving an opening to the outside. According to the Sauers, the floor in the bedroom also dropped some six to eight inches. The Sauers state that the homeowner's policy provides coverage for a partial collapse of an insured building caused by hidden decay or hidden insect damage. Under this provision, the Sauers maintain that they are entitled to coverage, and the circuit court erred by concluding otherwise.
The pertinent provision in the homeowner's policy reads:
8. Collapse. We insure for direct physical loss to covered property involving collapse of a building or any part of a building caused only by one or more of the following:
. . . .
(b) Hidden decay;
(c) Hidden insect or vermin damage[.]
Homeowner's Policy at 7.
Faced with a nearly identical homeowner's policy provision, the Kentucky Supreme Court interpreted the term "collapse" in a homeowner's policy to mean:
The word 'collapse' in connection with a building or other structure' [sic] has a well-understood common meaning. Webster's Collegiate dictionary defines the word as, '(1) To break down or go to pieces suddenly, especially by falling in of sides; to cave in.'Thiele, 522 S.W.3d at 199 (quoting Niagara Fire Ins. Co. v. Curtsinger, 361 S.W.2d 762, 764 (Ky. 1962)). We believe the above definition of collapse is controlling and shall conduct our analysis accordingly.
Viewing the facts most favorable to the Sauers, it is clear that no portion of their home collapsed. Collapse means to suddenly break down or go to pieces, in particular by the sides falling in or to cave in. Curtsinger, 361 S.W.2d at 764; Thiele, 522 S.W.3d at 199. The Sauers' home did not break down, go to pieces, or cave in as required under the definition of collapse.
Moreover, the damage to Sauers' residence is similar to home damage confronted by the Kentucky Supreme Court in Curtsinger, 361 S.W.2d 762. Therein, a screened porch on the back of a home had dropped approximately one foot causing the floor and roof to detach from the rest of the home. The Supreme Court held that "the mere subsidence of the floor of the porch, which pulled it and the roof away from the building a few inches, cannot be regarded as the collapse of any part of the building, and that the trial court should have so ruled as a matter of law." Curtsinger, 361 S.W.2d at 764-65. In reliance upon Curtsinger, we must reluctantly conclude that the circuit court properly determined that no collapse to any portion of the Sauers' residence occurred within the meaning of the homeowner's policy. See id. Therefore, we hold that the circuit court properly granted Farm Bureau's motion for summary judgment.
This is the peril and worst nightmare of every homeowner in Kentucky, to discover hidden damage to their residence from termites or pests. Under this policy, termite damage was only covered if part or all of the structure collapsed. Unless the homeowner can obtain a policy protecting against all termite damage, which likely does not exist, a Kentucky homeowner's only recourse is to obtain a comprehensive inspection before purchasing a home and thereafter obtain regular termite preventative treatments. We encourage the Kentucky Supreme Court to revisit Niagara Fire Insurance Company v. Curtsinger, 361 S.W.2d 762 (Ky. 1962), as concerns the interpretation of "collapse" for insurance policies issued in Kentucky.
For the foregoing reasons, the Order and Judgment of the Mason Circuit Court is affirmed.
ALL CONCUR.