United States Court of Appeals
For the First Circuit
No. 01-1037
BERNARD DREIBLATT, ET AL., TRUSTEES OF THE
SHIPWAY PLACE CONDOMINIUM ASSOCIATION,
Plaintiffs, Appellants,
v.
ST. PAUL FIRE AND MARINE INSURANCE CO.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Boudin, Chief Judge,
Gibson,* Senior Circuit Judge,
and Torruella, Circuit Judge.
Dana A. Curhan, with whom William T. Kennedy and Robert A. Koditek
were on brief for appellants.
Susan J. Condon, with whom Clausen Miller P.C. was on brief for
appellee.
* Of the Eighth Circuit, sitting by designation.
September 10, 2001
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TORRUELLA, Circuit Judge. The Shipway Place Condominium
("Shipway") suffered extensive roof damage which appellants1 attribute
to a particularly heavy snowstorm that fell in the Boston area on
April 1, 1997. Appellee St. Paul Fire and Marine Insurance Company
(St. Paul) denied coverage after concluding that: (i) no "collapse" had
occurred, as required by the insurance policy; and (ii) any collapse
that did occur was not caused by the heavy snow, but resulted from
corrosion damage explicitly excluded by the policy. Appellants brought
suit for breach of contract. The district court granted summary
judgment to St. Paul. Dreiblatt v. St. Paul Fire & Marine Ins. Co.,
No. 99-11334-DPW, at 27 (D. Mass. Dec. 7, 2000). This appeal followed.
We agree with the district court's determination that no "collapse"
occurred under Massachusetts law, and affirm on that basis.
BACKGROUND
We review a grant of summary judgment de novo, with the facts
taken in the light most favorable to the non-moving party. Coyne v.
Taber Partners I , 53 F.3d 454, 457 (1st Cir. 1995). The material
facts, which we review here, are essentially undisputed.2
1 Appellants are individual trustees of the Shipway Place Condominium
Association. Throughout the opinion, we refer interchangeably to the
condominium and the appellants as "Shipway."
2 In their brief to this Court, appellants rely on the facts as set
forth by the district court in its memorandum and order.
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Shipway Place is a nine building condominium complex in
Charlestown, Massachusetts. The roofs of all nine buildings are flat,
with a structure consisting of wood trusses supported by wood and metal
webs and covered with plywood sheathing. The roof exterior is covered
with a rubber membrane weighed down by stones for ballast. The ceiling
of the top unit in each apartment building is made of plaster attached
directly to the roof structure.
Shipway's insurance policy is provided by St. Paul. The
policy insures "against the risk of direct physical loss or damage
involving collapse of a building or any part of a building" due to
causes including the "weight of ice and snow or sleet." The policy
does not define the term "collapse," but provides that "[c]ollapse
doesn't include settling, cracking, bulging, shrinking, or expansion."
The policy also specifically denies coverage for loss "caused or made
worse" by "wear and tear" or "deterioration, mold, wet or dry rot, rust
or corrosion."
On April 1, 1997, a heavy snow fell on Boston. Following the
storm, the owners of Shipway Unit 33 returned to their condominium to
discover that their living room ceiling was "hanging down a couple of
inches." The ceiling was repaired in September 1997 and St. Paul paid
for the damage.3
3 There is some dispute over whether this payment was to cover damages
caused by the April snowstorm. Dreiblatt, No. 99-11334-DPW, at 2-3.
The district court assumed that it was for purposes of summary
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During the course of repairing the roof to Unit 33, Shipway
discovered extensive damage to its internal support structure. The
engineering firm of Simpson, Gumpertz & Heger (SGH) was hired to
investigate the problem further. In the course of its investigation,
SGH found that several of the metal trusses in the roof to Unit 33 were
"failed and severely corroded," and that the problem extended to roof
supports in many of the other units. In a November 18, 1997 report,
SGH warned that "a collapse of the roof structure is possible." Based
on further study, in July 1998, Shipway gave notice to St. Paul that it
sought to claim damage to all nine buildings based on the April 1997
snowstorm. St. Paul denied the claim.
Four other entities evaluated Shipway's roof damage after
SGH. In November 1998, city inspector Jay Duca evaluated the ceilings
of Units 32 and 34. He concluded that at least some parts of the roof
system had rusted and deteriorated, and issued a citation warning the
unit owners that the ceilings needed to be repaired. In deposition
testimony, Duca indicated that he did not feel that a collapse had
occurred prior to his visit; however, he testified that he had warned
owners that "there was a danger of a collapse of the roof." He also
noted that "it looked like there was some deflection [in the roof], but
[that the deflection] could have been normal."
judgment, id. at 3, and we do the same.
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Also in November 1998, Shipway hired engineering firm C.I.D.
Associates (CID) to provide a second opinion. A CID report indicated
findings of deterioration, collapse, flaking and de-lamination of metal
webbing, sagging or failure of the plywood roof deck, and collapse of
the ceiling onto the floor in various units.4 The report's author, Paul
O'Connor, testified only that he observed puddles of water on some of
the roofs, and that such "ponding" may suggest a sagging roof
structure.
In January 1999, Medeiros Property Management Consulting
conducted "deflection readings" on all of the Shipway units.5 A number
of the deflections measured exceeded that allowable under the
Massachusetts Building Code (3/16 of an inch) but none of the
measurements showed deflection of greater than one inch. Based on
these deflection readings, expert Rene Mugnier testified that one could
conclude from the deflection readings that there had been a complete
collapse of the plywood deck resulting from the snowstorm. Mugnier did
not base his deduction on any legal definition of the word "collapse."
4 Appellants have submitted no other evidence indicating that any
ceilings had collapsed to the floor. The district court held that, to
the extent the CID report was offered to support factual allegations
about the physical state of the building, it was inadmissible hearsay.
Dreiblatt, No. 99-11334-DPW, at 5. Appellants have not challenged this
conclusion, and do not rely on the report in their appeal.
5 A "deflection reading" indicates the amount of sag in a roof
structure.
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Lastly, Wiss, Janney and Elster Associates (WJE), an
engineering firm retained by St. Paul, examined the roof systems in
1999 while they were being repaired. In a May 14, 1999 report
evaluating three of the units, WJE determined that although there had
been differing amounts of corrosion within the roof, and "some
deflection of the roof system" due to load redistribution, the "load
redistribution and the associated deflections do not constitute a
collapse." In later reports, WJE indicated that its evaluation of the
remaining units was "generally consistent" with this conclusion.
The district court, relying on Clendenning v. Worcester Ins.
Co., 700 N.E.2d 846 (Mass. App. Ct. 1998), concluded that there had
been no collapse under Massachusetts law. Dreiblatt, No. 99-11334-DPW,
at 17. The court held that a collapse "must include a sudden and
completed event that results in a noticeably altered appearance." Id.
at 16. In other words, under Massachusetts law, a collapse has three
elements: suddenness, a perceptible change in appearance, and
completeness. The court also held that evidence of internal
deterioration within the roof structure was insufficient under
Clendenning, given that the roof still performed its basic functions:
[A collapse] must result in some significant
primary . . . element of the structure becoming
disengaged or falling down so that it no longer
is performing its characteristic function in the
building. The requirements of a "collapse"
cannot be satisfied by mere "flaking" or
"bending," nor may it be satisfied by
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compression, shifting, sagging, or "deflection"
of a few inches. The breakdown of subsidiary
elements such as several metal webs is not in
itself sufficient to constitute a collapse.
Id. at 16-17; see also id. at 12 ("[T]he Clendenning
opinion . . . cannot support the proposition that an arguably sagging
roof, or deteriorating support system that had become structurally
unsound but had not fallen in or become detached from the pertinent
structures, is a 'collapse.'").
The court also determined that St. Paul had not abandoned the
policy's definition of "collapse" by either evidentiary admission or
estoppel, id. at 17-21,6 and that even if there had been a collapse, it
resulted not from the heavy snowstorm but from long-term wear and tear
(corrosion) explicitly excluded by the St. Paul policy, id. at 27.7
DISCUSSION
Appellants do not challenge the facts recited by the district
court in making its determination, nor do they argue with the district
court's use of Clendenning as the source of the Massachusetts law of
collapse. Instead, they make a two-prong argument. First, they
suggest that the district court's refusal to consider an unseen failure
of structural elements within an enclosed roof system to be a potential
"collapse" was erroneous. Appellants argue that "a loss of structural
6 Appellants do not challenge this holding on appeal.
7 Appellants also challenge this aspect of the district court's
holding. We affirm without having to reach the question of causation.
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integrity coupled with some movement or alteration of the appearance of
a portion of the building" could indeed be a collapse under
Massachusetts law. Second, they argue that under this revised
definition, they introduced sufficient facts to survive summary
judgment: (i) that structural elements within the Shipway roof failed
and in some instances became detached; (ii) that ceilings sagged
perceptibly; (iii) that there were measurable deflection readings; and
(iv) that there was "ponding" on roof surfaces.
We are not persuaded. Appellants do not challenge the
district court's requirement that the collapse result in a "noticeably
altered physical appearance." Id. at 16; see also Clendenning, 700
N.E.2d at 660 (requiring "a visual element of altered appearance that
comprises a structural collapse, distinct from the degenerative process
causing the collapse"). In fact, appellants' own definition
contemplates that there be "some movement or alteration of the
appearance of a portion of the building" (emphasis added). Moreover,
in support of their position, they claim that there was "a clear visual
element of altered appearance." The district court found that
appellants had adduced no evidence of externally observable changes in
the roof's appearance, and our review of the record confirms this
determination.
First, there is no evidence that any roof (other than that
of Unit 33) sagged perceptibly to the naked eye. Not only have
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appellants not pointed us towards any testimony of perceptible sagging
in their appellate brief, but our careful review of the various
engineering reports in the record has not discerned any such testimony.
As the district court pointed out, with the exception of Unit 33,
"there is no evidence that any resident complained of, or even noticed,
any damage to a ceiling." Second, although the roof deflection was
measurable using a specialized apparatus called a "story pole," and was
significant enough in some cases to violate the Massachusetts building
code, appellants have not suggested that a deflection of less than one
inch can be perceived without engineering knowledge and equipment. We
agree with the district court that, as a matter of law, a deflection of
less than one inch is insufficient to create a "noticeably altered
physical appearance" in the building. The policy's exclusion of
"settling, cracking, bulging, shrinking or expansion" from the
definition of a collapse further supports the determination that de
minimus deflection does not meet the legal definition of collapse.
Third, although there may have been observable post-snowstorm "ponding"
on the Shipway roofs, appellants have introduced no evidence that the
"ponding" is a post-collapse phenomenon. A collapse requires that
there have been a change in appearance; lacking any evidence that the
"ponding" observed in 1999 had not always occurred on the allegedly
"previously flat" roofs, this evidentiary requirement is not met.
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Appellants also argue that under Clendenning, the relevant
changes to the roof's appearance may occur within the space between the
ceiling and the outer roof. To this end, appellants point to evidence
of observable damage to the roof's internal support structure not
revealed until workers entered that space to make repairs. We can
posit a situation in which the elements of Clendenning are satisfied,
but no damage is visible either from within the apartment itself or
from outside the building: for example, if many of the metal pieces
comprising the roof's internal support structure detached from one
another, yet somehow the outer roof and ceiling remained intact as an
apparently unchanged "shell" with no ability to support any weight.
Such was not the case here. At best, appellants introduced evidence
that several of the metal supports had become detached, and that others
were corroded, but that most remained in place. Moreover, the
evidence, even when viewed in the most favorable light to the
appellant, indicates that the outer roof and ceiling were more than a
"shell," and were in fact capable of supporting normal roof loads.
Even if Clendenning allows hidden changes such as these as sufficient
visual evidence of a collapse, it requires a more complete
deterioration than is revealed in the evidence submitted here. Id. at
661 ("The hidden destructive process must run its full course to be
insurable. . . . There are no degrees of collapse.").
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This concludes our analysis. Even if the district court
offered a narrower definition of collapse than that provided for by
Massachusetts law in Clendenning, appellants have not introduced
sufficient evidence to satisfy that aspect of the definition with which
they agree, nor have they placed any material facts sufficiently at
issue to require a jury trial. Summary judgment was therefore
appropriate.
Affirmed.
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