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Barbara King sued American Family Insurance, her homeowners' insurance carrier, alleging that her home in Niles, Ohio, had been damaged as a result of construction projects at the nearby Niles McKinley High School. King's complaint alleged that equipment that had been used in the construction and excavation of the school parking lot had caused “significant vibrations.” According to King, these vibrations had caused damage to her home, including cracks, leaks and mold.

King sued American Family for “Violation of Contractual Rights” due to the carrier's denial of her insurance claim.

American Family moved for summary judgment, citing an affidavit and report from Prugar Consulting, a structural engineering consulting firm. According to the report, Prugar Consulting had examined King's home and had concluded that the damages had not been caused by vibrations resulting from construction. The report outlined alleged damages, including cracks throughout the house, explaining that these areas of concern had been “present and progressing for years,” describing the appearance as discolored and patched in many instances. It attributed the damage to various causes, including normal shrinking and swelling due to seasonal moisture variations, “creep” (stretching and sagging in wood that developed over years), and normal shifting of concrete over the passage of time and moisture loss. The report noted that damage from vibration would be shown by certain signs, including “chatter” (flakes of material), which were not present in King's home.

American Family also noted that damage from events such as wear and tear, caused by earth movement or construction, and losses due to settling, cracking, shrinking, bulging or expansion of pavement, walls, floors or ceilings were not covered under King's policy.

Genuine issue of material fact?

In response, King argued that the cracks and damages alleged in her complaint had not existed prior to the construction work, which was shown through her depositions and neighbors' affidavits and, thus, that there was a genuine issue of material fact as to whether the vibrations had caused the damages.

According to King's deposition testimony, she had lived in her home for 13 years. She admitted that some cracks in her home had existed before the school project had begun but testified that other damage had occurred during the construction, including separation of the steps and trim from the wall, cracks on walls in multiple rooms and outdoor concrete, and her air conditioning unit “vibrating off” the concrete slab. She believed that the damage had been caused by vibration from the trucks and equipment used in the construction.

The trial court granted summary judgment in favor of American Family, finding that King had not rebutted the expert opinion that the damages had not been caused by the vibrations and construction. The trial court also ruled that the damage to her home was excluded from coverage under the terms of the American Family insurance policy.

King appealed.

The appellate court's decision

The appellate court affirmed, stating that it agreed with the trial court that the exclusions in King's insurance policy applied to the type of damage she claimed to her house.

The straightforward terms of the policy, the appellate court said, excluded losses “from normal wear and tear, as well as cracking and shrinking in pavements, patios, foundations, walls, roofs or ceilings.”

The appellate court acknowledged that King had argued that there was “adequate evidence to get to a finder of fact that this damage was caused by vibration — not settling,” but said that was not the case here. King, the appellate court said, had “failed to demonstrate that the cause of the damages she alleged [was] vibration.”

The appellate court then said that if King been able to demonstrate that the damages caused to her property had not been a result of normal wear and tear or from cracking and settling of pavements, patios and ceilings, that is, that they had been “directly caused by something other than the excluded losses,” the application of her insurance policy language “would differ.”

Expert testimony is persuasive

According to the appellate court, however, King had failed to present evidence to rebut the expert's conclusion that the damages in her house were “exactly those covered by the exclusion.” The appellate court pointed out that American Family had presented the report and affidavit of a structural engineering firm that specialized in evaluating damage and structural issues to buildings, which provided detailed descriptions of the likely cause of each item of damage. For example, it explained that typical evidence of damage due to vibrations, such as chatter, was not present, while evidence of other causes, such as patching, discoloring and warping showing long-term, progressive damages due to normal weather conditions and aging was present. Testimony that some cracks appeared during the time of the vibration/construction did not refute these conclusions, the appellate court added.

Under the facts of this case, it ruled, the expert report supported a conclusion that the terms of the policy excluded coverage, especially given that expert testimony clarified the often complex causes of structural damage.

The appellate court concluded that, under the facts of this case, the exclusions contained in King's homeowner's insurance policy precluded her from recovering against American Family and the trial court had properly granted summary judgment in its favor.

The case is King v. American Family Ins.

Steven A. Meyerowitz, Esq., is the director of FC&S Legal, the editor-in-chief of the Insurance Coverage Law Report, and the founder and president of Meyerowitz Communications Inc. Email him at smeyerowitz@meyerowitzcommunications.com.

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Did the insured prove that &lsquo;bad vibrations&rsquo; from a construction project damaged her home?

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