[Cite as King v. American Family Ins., 2017-Ohio-5514.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
BARBARA KING, : OPINION
Plaintiff-Appellant, :
CASE NO. 2016-T-0096
- vs - :
AMERICAN FAMILY INSURANCE, et al., :
Defendant-Appellee. :
Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2014 CV
01486.
Judgment: Affirmed.
Gary A. Benjamin, Community Legal Aid Services, 50 South Main Street, Suite 800,
Akron, OH 44308 (For Plaintiff-Appellant).
Donald P. Wiley, Baker, Dublikar, Beck, Wiley & Mathews, 400 South Main Street,
North Canton, OH 44720 (For Defendant-Appellee).
DIANE V. GRENDELL, J.
{¶1} Plaintiff-appellant, Barbara King, appeals from the judgment of the
Trumbull County Court of Common Pleas, granting defendant-appellee, American
Family Insurance’s, Motion for Summary Judgment. The issue to be determined in this
case is whether damages allegedly caused by vibration, but contested by an expert to
have resulted from other long-term causes, are subject to the exclusions clause in a
homeowner’s insurance policy that states losses for wear and tear and for cracking and
settling are not covered. For the following reasons, we affirm the decision of the court
below.
{¶2} On July 31, 2014, King filed a Complaint against American Family, which
provides her homeowner’s insurance. On July 9, 2015, she filed an Amended
Complaint, adding as defendants Mike Coates Construction Co., Inc., and B&B
Wrecking & Excavating.1 King alleged that her home in Niles, Ohio, was damaged as a
result of construction projects at the nearby Niles McKinley High School. The Complaint
alleged that Coates and B&B used equipment in the construction and excavation of the
school parking lot that caused “significant vibrations.” It stated that these vibrations
caused damage to her home, including cracks, leaks, and mold. Count One raised a
claim for “Violation of Contractual Rights” due to American Family’s denial of her
insurance claim. Count Two raised a claim for Negligence by Coates and B&B.
{¶3} American Family filed its Answer to Amended Complaint and Cross-claim
on August 12, 2015.
{¶4} American Family filed a Motion for Summary Judgment on March 31,
2016, attached to which was an affidavit and report from Prugar Consulting, a structural
engineering consulting firm. According to the report, Prugar Consulting examined
King’s home and concluded that the damages were not 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
1. Mike Coates Construction and B&B Wrecking are not parties to the present appeal. As to these
parties, King also contended that a contractor’s vehicle hit her home, causing damages that were
improperly repaired by Coates.
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seasonal moisture variations, “creep” (stretching and sagging in wood which develops
over years), and normal shifting of concrete over the passage of time and moisture loss.
The report noted that damage from vibration is evidenced by certain signs, including
“chatter” (flakes of material), which were not present in the current case. The affidavit,
signed by registered professional engineer Jerome Prugar, stated that the report was
reached to a reasonable degree of engineering certainty.
{¶5} 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 are not covered
under the terms of King’s policy. Coates and B&B also filed separate Motions for
Summary Judgment.
{¶6} King filed a Response to Coates’ and American Family Insurance’s
Motions for Summary Judgment on May 3, 2016. She argued that the cracks and
damages alleged in the Complaint did not exist prior to the construction work, which is
shown through her depositions and neighbors’ affidavits and, thus, there was a genuine
issue of material fact as to whether the vibration caused the damages.
{¶7} According to King’s deposition testimony, she has lived in her home,
which she believed was built in 1938, for 13 years. She admitted that some cracks in
her home existed before the school project began but testified that other damage
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” of the concrete slab. She believed that the damage was caused by
vibration from the trucks and equipment used in the construction.
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{¶8} Attached to King’s Response was the affidavit of John Hammel, King’s
neighbor. He attested that while the work at Niles High School was occurring, which
involved the use of a large machine to strike the parking lot pavement and a pile driver,
he felt “vibrations.” He also attested that he noticed a crack on King’s front porch that
he “had not noticed” before the construction began. Having been in King’s home prior
to her ownership, he noted no prior issues with water in the basement.
{¶9} Another neighbor, Mary Bright, stated in her affidavit that she felt
vibrations during the construction work, which woke up her children, and that “[t]he
vibrations caused several items to move in [her] home, including [the] washer and
dryer.”
{¶10} On July 26, 2016, the trial court issued a Judgment Entry ruling on the
summary judgment motions. As to the claims relating to damage caused by vibrations
from the construction project, the court granted summary judgment in favor of all
defendants, including American Family. The court found that King did not rebut the
expert opinion that the damages were not caused by the vibrations/construction and
King’s lay witnesses did not opine as to the cause of the damages. The court also ruled
in favor of American Family since this type of damage was excluded from coverage
under the terms of the insurance policy. As to the claim against B&B and Coates for
roof damage, the court found there was a genuine issue of material fact and denied
summary judgment as to that issue only.
{¶11} On September 21, 2016, a Stipulation and Judgment Entry of Dismissal
was filed, stating that Coates and B&B had settled all claims with King and, since
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summary judgment had been entered in favor of American Family, the court’s order is
final.
{¶12} King timely appeals and raises the following assignments of error:
{¶13} “[1.] The trial court erred in granting summary judgment in finding that
there was no evidence before the court that vibrations from a construction project
caused damages to appellant’s home.
{¶14} “[2.] The trial court erred in granting summary judgment in finding that the
vibrations damage alleged by King is expressly excluded from coverage under the
American Family homeowner’s policy.”
{¶15} Pursuant to Civil Rule 56(C), summary judgment is proper when (1) the
evidence shows “that there is no genuine issue as to any material fact” to be litigated,
(2) “the moving party is entitled to judgment as a matter of law,” and (3) “it appears from
the evidence * * * that reasonable minds can come to but one conclusion and that
conclusion is adverse to the party against whom the motion for summary judgment is
made, that party being entitled to have the evidence * * * construed most strongly in the
party’s favor.” A trial court’s decision to grant summary judgment is reviewed by an
appellate court under a de novo standard of review. Grafton v. Ohio Edison Co., 77
Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). “A de novo review requires the appellate
court to conduct an independent review of the evidence before the trial court without
deference to the trial court’s decision.” (Citation omitted.) Peer v. Sayers, 11th Dist.
Trumbull No. 2011-T-0014, 2011-Ohio-5439, ¶ 27. Moreover, “[a]n insurance policy is a
contract, and its construction is interpreted as a matter of law.” Penn Traffic Co. v. AIU
Ins. Co., 99 Ohio St.3d 227, 2003-Ohio-3373, 790 N.E.2d 1199, ¶ 9.
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{¶16} A party moving for summary judgment “bears the initial responsibility of
informing the trial court of the basis for the motion, and identifying those portions of the
record before the trial court which demonstrate the absence of a genuine issue of fact
on a material element of the nonmoving party’s claim.” Dresher v. Burt, 75 Ohio St.3d
280, 292, 662 N.E.2d 264 (1996). “If this initial burden is met, the nonmoving party then
bears the reciprocal burden to set forth specific facts which prove there remains a
genuine issue to be litigated, pursuant to Civ.R. 56(E).” Fed. Home Loan Mtge. Corp. v.
Zuga, 11th Dist. Trumbull No. 2012-T-0038, 2013-Ohio-2838, ¶ 12, citing Dresher at
292-293.
{¶17} The assignments of error will be considered out of order for ease of
discussion. In her second assignment of error, King argues that the trial court erred in
finding that damages caused by vibration are not covered under the insurance policy.
{¶18} The provisions at issue in the policy are found in the “Losses not covered
section.” This section excludes losses caused by “a. wear and tear, marring,
scratching, deterioration * * * and e. settling, cracking, shrinking, bulging, or expansion
of pavements, patios, foundations, walls, floors, roofs, or ceilings.” The trial court found
that, “based on the unrebutted expert opinion submitted by American Family Insurance,
the damage to the King home was caused by this type of excluded catalysts.”
{¶19} We agree that the losses present under the facts of this case are excluded
by King’s insurance policy. In reading the terms in the contract and giving them their
plain and ordinary meaning, see Gomolka v. State Auto. Mut. Ins. Co., 70 Ohio St.2d
166, 436 N.E.2d 1347 (1982), such exclusions apply to the type of damage in King’s
house. The straightforward terms of the policy prevent losses from normal wear and
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tear, as well as cracking and shrinking in pavements, patios, foundations, walls, roofs,
or ceilings. This is especially evident when viewed in light of the evidence presented by
the parties in the summary judgment proceedings.
{¶20} While King argues that there is “adequate evidence to get to a finder of
fact that this damage was caused by vibration – not settling,” such is not the case. King
has failed to demonstrate that the cause of the damages she alleged is vibration.
{¶21} Had King been able to demonstrate that the damages caused to her
property were not a result of normal wear and tear and/or from cracking and settling of
pavements, patios and ceilings, i.e., that they were directly caused by something other
than the excluded losses, the application of her insurance policy language would differ.
King, however, failed to present evidence to rebut the expert’s conclusion that the
damages in her house were exactly those covered by the exclusion. American Family
presented the report and affidavit of a structural engineering firm which specializes in
evaluating damage and structural issues to buildings, that 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 does
not refute these conclusions. Under the facts of this case, the expert report supports a
conclusion that the terms of the policy exclude coverage, especially given that expert
testimony clarifies the often complex causes of structural damage. See Simpson v. Am.
Internatl. Corp., 8th Dist. Cuyahoga No. 101183, 2014-Ohio-4840, ¶ 19-23.
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{¶22} King argues that the affidavits of her lay witnesses show that the foregoing
exclusions do not apply because the damages appeared after the vibrations began.
Again, these affidavits do not ultimately refute the expert’s conclusion that the damages
were of the type that fall under the exclusions. Further, Dixon v. Miami Univ., 10th Dist.
Franklin No. 04AP-1132, 2005-Ohio-6499, cited by King for the proposition that, when
there is little passage of time between the incident causing damage and discovery of the
damage itself and the matter is not speculative, such lay testimony creates an issue of
fact, is distinguishable. In Dixon, there was little cause for speculation, since the
appellee broke his arm while working (which the appellant did not dispute was caused
by its negligence) and a later infection resulted in the area of the fracture. Id. at ¶ 46-
47. Here, the unrefuted expert report served to show the many complex causes of
damages that fall under the exclusions and the neighbor’s affidavits do not serve to
refute the explicit language of the insurance policy.
{¶23} Under the facts of this case, we find that the exclusions contained in
King’s homeowner’s insurance policy precluded her from recovering against American
Family Insurance and the trial court properly granted summary judgment in its favor.
{¶24} The second assignment of error is without merit.
{¶25} In her first assignment of error, King argues that the trial court erred in
determining that she failed to prove the vibrations caused the damages since she did
not rebut the expert’s conclusion that they were the result of other causes.
{¶26} Since we have determined that King’s claims are excluded by the terms of
her insurance policy, the first assignment of error is moot.
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{¶27} For the foregoing reasons, the judgment of the Trumbull County Court of
Common Pleas, granting summary judgment in favor of American Family Insurance, is
affirmed. Costs to be taxed against appellant.
TIMOTHY P. CANNON, J.,
THOMAS R. WRIGHT, J.,
concur.
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