401 Fourth Street, Inc. v. Investors Insurance Group

DISSENTING OPINION BY

ORIE MELVIN, J.

¶ 1 The majority distinguishes Dominick v. Statesman Ins. Co., 692 A.2d 188 (Pa.Super.1997) and finds that the policy here insures not only against “collapse,” but also against “risks of direct physical loss involving collapse.” Yet, the majority also recognizes that the more specific language in the contract clearly defines collapse as not including “settling, cracking, shrinkage, bulging or expansion.” Amended Complaint, Exhibit A (emphasis added). As the parapet wall in question has not collapsed and the “risk of direct physical loss involving collapse” is defined *180as not including bulging, I must respectfully dissent.

¶ 2 I begin by recognizing that it is undisputed that the parapet wall in Appellant’s building is beginning to bow and lean inward. However, despite the majority’s statement to the contrary both experts do not agree that immediate repair is necessary, and neither expert testified that collapse is imminent. Accordingly, I believe the trial court correctly denied Appellant’s motion and granted Appellee’s motion dismissing the complaint with prejudice.

¶ 3 I find the trial court correctly relied on Dominick v. Statesman Ins. Co., 692 A.2d 188 (Pa.Super.1997). The homeowners’ policy in Dominick covered “direct physical loss to covered property involving collapse of a building or any part of a building_” Id. at 191. The majority concedes that this Court determined that the homeowners’ claim was not within the policy’s coverage because the home did not collapse, and there is no direct physical loss involving collapse until there is an actual collapse. Presently, the only difference in the policy language is the addition of the term “risk.” The policy here reads “risks of direct physical loss involving collapse.” All insurance is meant to cover risks. I do not believe that the addition of the term “risks” to the language of this policy broadens the coverage.

¶ 4 Finally, the trial court’s concern that this interpretation would unfairly subject the insurer to liability based on “potentially infinitesimal risks” or “the existence of some small or vague possibility” of collapse should not be so summarily dismissed. Surely the majority’s holding will open a flood gate for claims seeking recovery for every bulging, bowed and leaning wall out there regardless of how imminent the danger it presents.

¶ 5 Because the facts of this case are not in dispute and the use of the term “risks” is superfluous language and does not broaden the policy’s coverage, I would affirm.