The introductory paragraphs to these exclusions preclude loss caused directly or indirectly by the excluded peril, and regardless of any other cause or event that contributes concurrently or in any sequence to the loss. This language was introduced in 1983 to address the evolving doctrine of concurrent causation. (See Concurrent Causation and Efficient Proximate Cause.)

 Naturally Caused Catastrophic Earth Movements Are Excluded

 While the ISO homeowners form now states that the exclusion applies whether caused by an act of nature or otherwise, that language was not always in the policy. A majority of jurisdictions hold that the term "earth movement" applies only to naturally occurring phenomena of a catastrophic nature. Apparently, the original earth movement exclusion was added to property coverage forms as a result of the San Francisco earthquake of 1906. Subsequently, the earthquake exclusion was broadened to include other catastrophic events such as landslides. Courts adhering to a historic view of the exclusion generally limit the exclusion to natural and catastrophic earth movement.

 An example of this approach is Steele v. Statesman Ins. Co., 607 A.2d 742 (Pa. 1992). In this case, the court held that the exclusion was limited to natural events only and therefore provided coverage for damage to a home when the hillside above it collapsed due to a man-made event (a neighbor's construction activity on the property). The exclusion was held to be ambiguous. The court said,

 On the one hand, the provision bars coverage for natural events, i.e., earthquake and volcanic eruptions. On the other hand, the provision bars coverage for events which can be natural, man-made or both, i.e., landslide, mudflow, earth sinking, rising or shifting. Although it is arguable that the exclusion is applicable to earth movement due to natural and man-made events, a reasonable insured could conclude that the exclusion is applicable to earth movement due to natural events only. Since the earth movement exclusion is susceptible to different constructions, it is impossible to determine the intent of the parties as manifested by the written language of the contract of insurance.

 Courts also have been guided by the concept known as the doctrine of ejusdem generis. This legal concept states that a general term (such as earth movement) that is found to be ambiguous should be interpreted in light of the specific terms (such as earthquake or landslide) preceding (or following) it.

 In the usual course of contract interpretation, the doctrine applies only if the specific terms precede the general (as in earthquake, landslide, or other earth movement). However, for purposes of interpreting the meaning of earth movement, courts have often rejected this technicality and have applied the doctrine without regard to whether earth movement was placed before or after the specific terms. This deviation may be the result of the exclusion's origin as a broadening of the earthquake exclusion. However, some courts have adhered to the strict technical requirements of the doctrine and will apply it only when the specific words precede the general.

 The Alabama Supreme Court adhered to the doctrine strictly in Bly v. Auto Owners Ins. Co., 437 So.2d 495 (Ala. 1983). The court stated that the doctrine of ejusdem generis should apply. The Blys were denied coverage under a homeowners policy for damages to their home resulting from vibrations caused by logging trucks traveling on a nearby road. The Blys argued that there was coverage under the peril of vehicles and that the vibrations were not earth movement. The court agreed that the damage was covered under the vehicles peril.

 The earth movement exclusion read as follows: "This policy does not insure against loss…caused by, resulting from, contributed to or aggravated by any earth movement, including but not limited to earthquake, volcanic eruption, and landslide, and mudflow, earth sinking, rising or shifting." The court said,

 In the instant case, the enumerated types of earth movement are all natural phenomena. While the policy states that the exclusion is not limited to the specified types of earth movement, it can be reasonably concluded that the intent was to include other natural phenomena involving earth movement…The policy is at best ambiguous as to whether the vibrations caused by the passing vehicles constitute earth movement within the meaning of the exclusion. The trial court should have construed the exception narrowly to provide maximum coverage under the rules cited above and found that the damages from the vibrations were not excluded from coverage.

 In Peters Township School District v. Hartford Accident and Indemnity Co., 643 F. Supp. 518 (W.D. Pa. 1986) the court applied the ejusdem generis rule to limit the exclusion even though the term earth movement appeared before any specific terms. A school district sued its insurer for coverage when two school buildings were damaged by mine subsidence. The court noted that, in its historic development, the earth movement exclusion applied to catastrophic and extraordinary calamities, affecting substantial areas, and disruptive of ordinary actuarial computations taken into account by insurers in formulating their premium rates. The court held that earth movement means "spontaneous, natural, catastrophic earth movement." The court also stated, "It would seem appropriate for insurers to specifically exclude 'subsidence' as such…if it is a special type of insurance coverage, rather than relying on earth movement to embrace the consequences of mining out support under coal lands."

 Despite the court's acceptance of the school district's views on most points, it held for the insurer. The school district argued that all things done by human beings long ago were man made activities that precluded the applicability of the exclusion. The court rejected this argument, pointing out that the building sites had been "considered safe and suitable for the erection of school buildings which survived and served their educational purposes for many years. The subsidence from which plaintiff suffered damages occurred through natural and spontaneous processes of deterioration and decay."

 On appeal, the court held that, though the district court was correct in holding that the exclusion barred coverage for natural events but not for man-made causes, the court had erred in stating that the mines had reverted to "the keeping of nature." Therefore, the court found for the school district with respect to one school's damage. The cause of damage to the other school was still in dispute, so the court vacated judgment in that instance See Peters Township School District v. The Hartford Accident and Indemnity Co., 833 F.2d 32 (3rd Cir. 1987).

 In Powell v. Liberty Mut. Fire Ins. Co., 252 P.3d 668 (Nev. 2011), a water pipe exploded and flooded the insured's dirt sub-basement. The house suffered a shift in the foundation and excessive cracking, as well as separation of walls and ceilings in several rooms. Her homeowners insurer, Liberty Mutual, denied the claim for damage, citing the earth movement exclusion.

 The Nevada Supreme Court stated that the earth settling clause in a homeowners earth movement exclusion "would seem to support an interpretation that the earth movement exclusion only applies to naturally occurring events, instead of clarifying that it applies to both naturally occurring events and man-made events. Yet, Liberty Mutual's earth movement exclusion lists both naturally occurring events and man-made events as examples. We conclude that not only is the earth movement exclusion ambiguous and must be interpreted against the insurer, Liberty Mutual, but the settling clause does not help clarify that ambiguity."

 In United Nuclear Corp. v. Allendale Mut. Ins. Co., 709 P.2d 649 (N.M. 1985), the Supreme Court of New Mexico found that the earth movement exclusion applied only to naturally occurring phenomena (applying the rule of ejusdem generis). The insured operated a uranium mill. It sued two insurers (and won at trial and appeal against one insurer) for business income and property damage losses arising out of the failure of a tailings dam caused by differential settlement. Differential settlement is the result of differential absorption of moisture by different types of soil (in this case the settlement occurred at a transition zone between the bedrock and the alluvial soil under the dam). The settlement created a crack in the dam.

 The court also found that differential settlement was not subsidence within the following provision for collapse coverage: "Collapse of buildings, structures or a material part thereof in excess of $25,000 for each occurrence, except that there shall be no liability for loss or damage caused by or resulting from flood, earthquake, landslide, subsidence or any other earth movement."

 The court reasoned that the settling, shrinking or expansion provision did not preclude coverage because it applied to normal wear and tear only. The court also rejected the contention that differential settlement should be excluded as any other earth movement, apparently because the dam was a man-made structure and thus its movement was not natural.

 An Illinois court of appeals also applied the rule of ejusdem generis to a homeowners policy when it held that settlement and consolidation of backfill material placed against a basement wall was not earth movement. The court, in Mattis v. State Farm Fire and Cas. Co., 454 N.E.2d 1156 (Ill. App. 1983), held that there was coverage under an open perils policy because there was evidence that the loss was partially caused by inadequate or improper design or construction. The court made no finding that the faulty design or construction was the efficient proximate cause of the damage but found it sufficient that this was a cause of loss. The controlling exclusion used the same language as the exclusion in Bly, discussed previously. The court stated that the definition of earth movement should be limited to causes of the same class as earthquake and landslide.

 In Wisconsin Builders, Inc. v. General Ins. Co. of America, 221 N.W.2d 832 (Wis. 1974), the Wisconsin Supreme Court ordered a new trial on the issue of whether there was coverage under an open perils builder's risk policy when part of an apartment building under construction collapsed. The earth movement exclusion was almost identical to the one in Mattis, discussed earlier. The L-shaped building was being built at the foot of a hill. Part of the hill was excavated during construction, leaving almost a vertical rise behind the building under construction. Problems developed and corrective measures were taken (including cutting the hill back to change the angle of repose and filling and terracing); construction continued until the collapse.

 During the two days before the collapse, fill was dumped along a wing wall. This was done to raise the level of fill behind the wall and terrace it back up the hill. Fill was dumped off the top of the bluff so that it could slide down and be moved around at the bottom by a bulldozer. At mid-day on the second day the wall started tilting. Deposited fill rested against the building; it had not yet been terraced up the hill.

 Most of the earth behind the wall was fill earth, although it was also determined that a large part of the hill had fallen down either before or after the wall's collapse. Three witnesses concurred that the earth pressure on the wall was increased by excessive filling above the intended height plus "too much heavy equipment working too closely to the structure" caused the collapse.

 The trial court had defined earth movement for the jury as any movement of the earth "whether it be up, down, or sideways." The jury therefore ruled that the loss was caused by earth movement within the exclusionary clause.

 In remanding the case for a new trial, the Wisconsin Supreme Court quoted with approval this passage from Wyatt v. Northwestern Mutual Insurance Co. of Seattle, 304 F. Supp. 781 (D.C. Minn. 1969):

 It seems hard to contend that the insurance policy meant to exclude all earth movements, for it is difficult to distinguish between a situation where a piece of heavy equipment breaks loose and hits a house causing serious damage and a situation where that equipment instead hits only an embankment next to a house but causes the earth to move and thereby damages the house. Certainly not all earth movements, or at least those where some human action causes such are included in the exclusion. If this interpretation creates an ambiguity in the language then it is necessary to decide what earth movements were intended to be covered.

 The court, applying the doctrine of ejusdem generis, found that "the trial court, by defining 'earth movement' to include all movements of the earth…left the jury with too broad a class of forces excludable under the policy."

 A Tennessee court followed the same reasoning in Rankin v. Generali—U.S. Branch, 986 S.W.2d 237 (Tenn. App. 1998). Rankin Sign Company suffered property damage due to heavy machinery being parked next to the front of its building. The court relied on ejusdem generis rule to determine that only "occasional major disasters" fell within the exclusion, but not human action. Thus, the court found that the earth movement exclusion did not apply.

 Although many courts have been liberal in their application of the ejusdem generis doctrine, others have refused to use the rule when the general words precede the specific in the exclusion. For instance, in Jones v. St. Paul Ins. Co., 725 S.W. 2d 291 (Tex. App.—Corpus Christi 1986), a Texas court of appeals refused to apply the doctrine to an exclusion with the same language as that found in Bly. Nonetheless, the court found for the insured when it determined that soil contraction due to drying, which caused the building's foundation to settle and resulted in movement of a wall and roof collapse, was not earth movement. Furthermore, although the court said that it would not apply the doctrine of ejusdem generis, it also said, "Although the settling testified to may have occurred when the soil contracted as it dried, this simply is not earth movement as contemplated by the policy. The earth movement exclusion contemplates abnormally large movements such as the examples listed."

 The only evidence as to whether any earth movement or foundation movement of the building had occurred came from the insurer's witnesses. They both testified that the main cause of the roof's collapse was due to improper construction, although they contended that the trigger of damage was probably foundation movement. The insurer's own adjuster, after consulting with his expert, wrote a report stating that a distinction existed between "earth movement and soil variations due to moisture stress."

 Although the insurer asserted that the inherent or latent defects and settling exclusions also applied, only the issue of whether the earth movement exclusion applied went to the jury. The appeals court said that the settling exclusion would be rendered meaningless if the court adopted the meaning of earth movement put forth by the insurer (implying that the insurer might have had better success under the settling exclusion. However, in the case of Shield v. Pennsylvania General Ins. Co., 488 So.2d 1232 (La. App. 1986), a Louisiana court of appeals held for the insured. The front portion of the house collapsed because of consolidation of the soil. Two conflicting provisions came into play—one, the exclusion for earth movement, and the other excluding "settling, unless collapse occurs."

 Any Earth Movement Excluded

 Some courts have taken the minority position that the earth movement exclusion applies to any movement of the soil. One court held that there was no coverage for cracking of garage and basement walls and footings when rain water ran into the footings during construction and then froze. In Oak Tree v. Commercial Union Ins. Co., 720 F. Supp. 92 (E.D. Mich. 1989), the building contractor fixed the damage and sued his insurer to recover his costs. The insurer argued that coverage was excluded by the earth movement exclusion, the exclusion of damage by "water below the surface of the ground," and the settling exclusion. The court, in ruling for the insurer, reasoned that when these exclusions are considered together, they clearly indicate that damage to foundation walls caused by natural forces is not covered. Concerning the earth movement exclusion, the court said that "any kind of ground movement…which causes loss is not covered."

 A Tennessee court of appeals, in Lee v. Nationwide Mut. Ins. Co., 1988 WL 39567 (Tenn. App. 1988), ruled that the words earth movement mean "any change of place, position or posture of the soil." The court construed the meaning of earth movement according to the plain, ordinary, and popular sense because the words had not acquired a technical sense by commercial usage.

 The insured had an open perils homeowners policy. The walls of his house were damaged from a shift in the foundation caused by a leak in a sewer pipe inside the house that resulted in liquid sewage flowing underneath the foundation. The policy excluded loss due to "any and all settling, shrinking, cracking, of foundations, walls, floors, roofs or ceilings caused by, resulting from, contributed to, or aggravated by any of the following…earth movement, including but not limited to earthquake, landslide, mudflow, earth sinking, earth rising or shifting" and "water below the surface of the ground."

 The court also found that the phrase "water below the surface of the ground" has no technical limitation and means "any water below the extreme upper crust of the soil which retains its characteristic of liquidity." Thus this exclusion also applied to avoid coverage.

 Some Louisiana appeals courts have taken the minority position. For example, in Nida v. State Farm Fire and Cas. Co., 454 So. 2d 328 (La. App. 1984), the court was presented with the following exclusion in a homeowner's open perils policy: "We do not cover loss resulting directly or indirectly from…Earth Movement." Because there were no specific words with which the term earth movement could be construed, the court refused to apply the rule of ejusdem generis. Because earth movement was undefined in the policy, the court said that "it must be interpreted in its ordinary sense as used and understood by laymen, rather than by technicians and scientists." The court found that the term was not ambiguous.

 The insured's home was ten years old when he put in a claim for collapse coverage due to structural damage caused by the shrinking and expansion of the active clay soil on which the house had been built.

 The court also held that the settling exclusion in the policy was unambiguous and applied to avoid coverage and that the cause of loss was improper construction of the foundation walls. The improper construction came within the definition of latent defect and coverage for the loss was excluded under this provision as well.

 The Supreme Court of Kansas also declined to apply the ejusdem generis doctrine in Stewart v. Preferred Fire Ins. Co., 477 P.2d 966 (Kan. 1970), finding that the term earth movement was unambiguous. The insured's house sank into a pre-existing mine shaft under the property. Various portions of the home collapsed. The policy included collapse coverage but stated that collapse was not settling, cracking, shrinkage, bulging, or expansion (in contrast to Shield, previously). The earth movement exclusion provided that the insurer was not liable for "loss caused by, resulting from, contributed to or aggravated by any earth movement, including but not limited to earthquake, landslide, mud flow, earth sinking, rising or shifting."

 The court said:

 The term earth movement taken in its plain, ordinary and popular sense means any movement of earth whether it be up, down or sideways. The words earthquake, landslide, mud flow and the term earth sinking, rising or shifting all refer to vertical or horizontal movements of earth or soil, wet and dry…In addition we cannot agree that landslides, mud flows, earth sinking, rising or shifting are natural phenomena or acts of God… For the most part the events enumerated in the exclusionary clause originate from the negligence or carelessness of man in failing to follow proper conservation practices. When earthquakes, which fall within the legal definition of an act of God, are included along with landslides, mud flows and earth sinking, there is no apparent basis for the restriction urged by [the insured] under the rule of ejusdem generis.

 The court found that the policy's collapse coverage was severely limited but said that when the contract is not ambiguous, the court "will not make another contract for the parties but will enforce the contract as made."

 In Millar v. State Farm Fire and Cas. Co., 811 P. 2d 1081 (Ariz. 1991), the court held that the exclusion operated to eliminate coverage where damage to an insured's dwelling consisted of earth movement resulting from water that escaped from a broken automatic sprinkler system.

 Another court found that a policy excluded losses resulting from earth movement, regardless of the cause, in State Farm Fire and Cas. Co. v. Castillo, 829 So.2d 242 (Fla. App. 2002). Blasting near the Castillo's' home caused earth movement below the house's structure and damaged the floors and walls. While the Castillos argued that the policy should be interpreted as applying only to natural, and not man-made events, the court said it refused to follow other jurisdictions that "ignore the unambiguous language of the lead-in clause which states that coverage is excluded 'regardless of: a) the cause of the excluded event,'" meaning "that the exclusion is triggered whether the earth movement is caused naturally or by man."

 The court said that the insureds may have reasonably expected their homeowners coverage to pay for the loss, but the policy's terms trump the homeowner's expectations where no ambiguities exist. The court concluded that the earth movement exclusion was not ambiguous, and thus, the loss was not covered.  

 Efficient Proximate Cause

 Insurance Services Office (ISO) revised property coverage forms in the late 1980s in order to avoid covering certain types of losses that courts, applying California law, had found to be covered under the doctrine of concurrent causation. Under the concurrent causation doctrine, open perils property policies were held to cover losses caused jointly by an excluded peril, such as flooding or earth movement, and some other peril not excluded by the policy. (See Concurrent Causation for a discussion of this subject.)

 However, some states apply the efficient proximate cause rule to cases involving the earth movement exclusion. Under an open perils policy, when loss can be directly attributed to two causes, one of which is a nonexcluded peril and the other of which is excluded, the efficient proximate cause rule requires the policy to provide coverage only if the nonexcluded peril is the efficient proximate cause of the loss. Coverage will not apply if the nonexcluded peril is simply a concurrent proximate cause of the loss. The California Supreme Court took this position is Garvey v. State Farm Fire and Cas. Co., 257 Cal. Rptr. 292 (1989). The court held that the doctrine of concurrent causation should be used only in third-party (liability) cases where "independent acts of negligence join together to produce an injury." In first-party (property) losses, however, the court held that the efficient proximate cause doctrine governed. The court cautioned that the efficient proximate cause must be the true cause of loss, or exclusions in an open perils policy would be rendered meaningless.

 The plaintiffs' addition to their home began to pull away from the main structure. The insurer maintained the earth movement exclusion precluded coverage; the insureds disagreed and cited unexcluded contractors negligence as the cause. The case was remanded to the trial court for further proceedings in accordance with the efficient proximate cause doctrine.

 Following this same rule, the Washington Supreme Court, in Safeco Ins. Co. of America v. Hirschmann, 773 P.2d 413 (Wash. 1989), held that because the efficient proximate cause of the loss to a home under an open perils policy was wind and rain, and not the ensuing landslide, the earth movement exclusion was inapplicable. The policy was amended as a result of the concurrent causation doctrine to read: "We do not cover loss caused by any of the following excluded perils, whether occurring alone or in any sequence with a covered peril…Earth Movement, meaning…earthquake; landslide; mudflow; earth sinking, rising or shifting."

 A number of landslides resulted from heavy rains, and the insured's home was destroyed by a landslide. The house was over sixty-five years old at the time of loss. The insured's expert engineer determined that the type of soil in the hill behind the house lost strength when it became saturated and that the mechanical action of the strong winds on trees and bushes loosened the surface soil and increased the infiltration of rainwater into the soil. In his opinion, the rainfall was the primary cause of the collapse of the hillside.

 The Supreme Court of Washington adopted the efficient proximate cause rule in an earlier case, Graham v. Public Employees Mut. Ins. Co., 656 P.2d 1077 (Wash. 1983), which stated: "Where a peril specifically insured against sets other causes in motion which, in an unbroken sequence and connection between the act and final loss, produce the result for which recovery is sought, the insured peril is regarded as the 'proximate cause' of the entire loss. It is the efficient or predominant cause which sets into motion the chain of events producing the loss which is regarded as the proximate cause, not necessarily the last act in a chain of events."

 The court viewed the concurrent causation amendments in the policy language as an attempt by insurers to circumvent the efficient proximate cause rule. It concluded that the concurrent causation language was functionally similar to prior exclusionary language ("We do not cover loss resulting directly or indirectly from [listed excluded perils]"). The court said that previous Washington state cases had held that new exclusionary language could not be used by insurers to circumvent the efficient proximate cause rule when the new clauses were functionally similar to the previous provisions. The court stated that the insurer's own arguments in this case showed that it believed that the insured would have been covered for this loss under the previous language.

 The court recognized that there could be a different result in those states where the efficient proximate cause rule had not been adopted. It noted that the Wyoming Supreme Court (which did not have an efficient proximate cause rule) had refused to find coverage under a policy including concurrent causation language where the nonexcluded perils of rain and hail led to damage caused by the excluded peril of surface water. The Wyoming case is State Farm Fire and Cas. Co. v. Paulson, 756 P.2d 764 (Wyo. 1988).

 The Garvey and Hirschmann cases can be seen as the opposite sides of one coin. Prior to Garvey, the California appeals courts had been finding coverage in property insurance cases (under open perils policies) even if the efficient proximate cause of the loss was excluded, as long as a nonexcluded peril contributed in some way to the loss. The Garveys argued that they were clearly covered for damage to their house arising out of negligent construction, even if earth movement was involved in the loss. The court held that a determination had to be made concerning whether earth movement or the nonexcluded peril of negligent construction was the efficient proximate cause of the loss. If the excluded peril was the efficient proximate cause, their damage would not be covered (even if negligent construction aggravated the damage). The California court attempted to avoid coverage where the efficient proximate cause was excluded and only consequential perils were covered. In contrast, the Washington court applied coverage where the efficient proximate cause was deemed to be covered and only consequential causes were excluded.

 After Garvey, one California appeals court specifically ruled that open perils insurers must provide coverage when a covered peril is the efficient proximate cause of a loss, regardless of the exclusionary language used. See Howell v. State Farm Fire & Cas. Co., 218 Cal. App. 3d 1446 (1990).

 Third-Party Negligence

 Because open perils policies contain the exclusions of coverage for loss or damage caused by acts or decisions (or failure to act) of individuals and groups, and faulty, inadequate, or defective planning, design, materials, or maintenance, claims involving earth movement that might once have succeeded under the theory that third-party negligence was a covered peril are being successfully denied. For example, in Tzung v. State Farm Fire & Cas. Co., 873 F.2d 1338 (9th Cir. 1989), the court held that the exclusion of third-party negligence (and the exclusion for damage by inherent defect) barred recovery when the insureds' apartment building cracked and settled due to subsurface water that damaged the improperly designed building.

 However, a California court found for the insured in the case of Opsal v. USAA, 2 Cal. App. 4th 1197 (1991). The insureds discovered that the slab upon which their house was built had cracked because of improperly compacted fill soil underneath. The claim was denied based on earth movement and inherent vice or latent defect. Although the defendant argued that third-party negligence was not separate from the physical cause of loss (the earth movement), the court held that was the cause of loss and therefore not excluded. The court added that inherent vice and latent defect were unclear since there had been no testimony as to what type of inspection was required to reveal these perils as causes of loss.