Robert W. Allen, Appellee, v. Hartford Fire Insurance Company, a Corporation, Appellant

Kansas Supreme Court1961-03-04No. No. 42,083

187 Kan. 728359 P.2d 829

Summary · law.co

Holding. The judgment for the policyholder is affirmed, and the trial court properly awarded damages of $603.13 under the collapse clause along with attorney's fees, as the evidence supported that unusual weather or drought conditions caused material structural damage that neither party could have reasonably foreseen.

Allen sued Hartford Fire Insurance Company to recover under a collapse clause in a homeowner's fire and extended coverage policy after his house sustained damage. Two co-insurers settled their portion of the claim and were dismissed. A jury awarded Allen $603.13—representing his half of the loss caused by the house's collapse—and the trial court entered judgment accordingly, also awarding attorney's fees.

The appellate court applied the controlling standard from Jenkins v. United States Fire Ins. Co., which defines collapse as a material impairment of a building's structural integrity caused by unusual and extraordinary circumstances the parties could not reasonably foresee when executing the policy. Here, evidence showed that weather conditions or drought caused the basement walls to bulge and the house to settle, making upper doors inoperable. The court found the jury instruction properly reflected the Jenkins standard, the verdict was supported by the evidence, and the trial judge correctly determined the insurer had no legitimate basis to deny the claim.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Definition of 'collapse' under an insurance policy's collapse clause
Whether damage caused by weather or drought conditions constitutes unforeseeable collapse
Whether material impairment of structural integrity satisfies the collapse clause
Entitlement to attorney's fees when an insurer lacks justification for denying a claim

Procedural posture

The defendant insurance company appealed a jury verdict and judgment entered in favor of the policyholder on a collapse clause claim in a fire and extended coverage insurance policy.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

The opinion of the court was delivered by

Jackson, J.:

In the court below, Allen sued the insurance company on a collapse clause in a fire and extended coverage insurance policy issued by the defendant company covering a dwelling house which, at the time of the alleged loss, seems to have been Allen’s home. Two other insurance companies were originally made parties defendant. These companies had issued other policies of a similar nature which insured half of any loss by collapse of the house. These companies later settled with plaintiff and paid half of the loss and were dismissed as parties to the action. The case against the defendant insurance company was tried to a jury which returned a verdict in the sum of $603.13 — that being the amount sued for by plaintiff against the defendant as half of the loss due to the collapse of his house. Judgment was granted on the verdict and defendant insurance company has appealed.

The insurance company in its notice of appeal has specified six orders as to which it appeals and in its specifications of error complains of seven orders. Without stopping to ascertain whether all of the specifications of error are included in the notice of appeal, we are constrained to say that the law of this case is largely governed by the decision of this court in Jenkins v. United States Fire Ins. Co., 185 Kan. 665, 847 P. 2d 417.

The Jenkins case involved a similar clause in an insurance policy and a quite similar collapse in basement walls of a house. We might observe that this court is really of the opinion that the cracks in the basement walls in this case showed worse injury to the house than the damage in the Jenkins case. Here, the evidence showed that the doors upstairs would not close because of the settling of the house due to the bulging of the south wall in the basement. In the Jenkins opinion, supra, the insurance clause similar to the one here involved was construed at page 671 as follows:

“When construed on the basis of intention, as required by the foregoing decision, and others therein cited, we believe the clause ‘collapse of building or any part thereof as used in the involved insurance contract is to be interpreted as comprehending that, if brought about by unusual and extraordinary circumstances which the parties to that agreement could not normally expect or foresee on the date of its execution, the settling, falling, cracking, bulging or breaking of the insured building or any part thereof in such manner as to materially impair the basic structure or substantial integrity of the building is to be regarded as a ‘collapse’ of the building within the meaning of that word as used in such clause of the policy. We further believe that questions relating to whether that condition came about under the previously related conditions and circumstances are questions of fact for the jury and the trial court.”

The trial court framed the instruction defining “collapse” upon the above quoted part of the Jenkins opinion. There is no reason to think the jury did not follow the instruction in finding its verdict for the plaintiff which was amply supported by the evidence.

There is little, if any, evidence which would indicate that the collapse of the building in this case was brought about by circumstances which the parties to the agreement “could normally expect or foresee” on the date of the agreement. In both the Jenkins case and in this case the evidence indicated that the damage was caused by weather conditions or drouth, and the jury in this case so found.

This court has examined each point in the brief of the insurance company and is of the opinion that there is no reversible error to be found in this appeal, and that an extended discussion of each of the seven specifications of error is unwarranted.

At the close of the trial, the learned trial judge filed a short memorandum opinion in which he noted that in view of Jenkins v. United States Fire Ins. Co., supra, he felt the defendant insurance company had “no just cause or excuse” for failing to pay the plaintiff’s claim and was therefore allowing plaintiff an attorney’s fee of $225.00 under G. S. 1959 Supp., 40-256. We fully agree with the trial court in the allowance of this modest fee.

The judgment appealed from must be affirmed. It is hereby so ordered.