BROOM v. WILSON PAVING & EXCAVATING, INC.

TAYLOR, J.,

dissenting (Joined by Winchester, J.):

T1 I respectfully dissent from the Court's decision. The trial court's precise determination of the meaning of the earth-movement exclusion was correct, I write separately to emphasize two serious missteps in the Court's construction of this exelusion. To construe the exclusion as ambiguous and interpret it to apply only to naturally occurring earth movement is a torturous reading of its words. The entire case should turn on the purpose of the insurance policy and the plain language of the exclusion. The Court confuses this liability policy with that of a homeowner's or all-risk policy and then gives only a passing analysis to the actual language at issue. The judgment entered against Wilson Paving in the trial court may be due and owing, but it is simply not covered by. this commercial general Hability (CGL) policy.

11 2 Wilson Paving purchased a CGL policy from Mid-Continent as protection from all types of liability claims for bodily injury and/or property damage that may arise from the business's premises, products, operations, and other enterprises of the business. Wilson Paving's workers' compensation insurance policy covered its employees while on the job; its CGL policy was to be its public liability policy. Steven Broom was an employee of the temporary ageney on the Wilson Paving job site, and he was injured while working inside a trench that caved in. The accident and subsequent injury were fully covered by the temporary agency's workers' compensation coverage, and Broom collected the full measure of what he was entitled for this on-the-job injury.

3 The parties added the earth-movement exclusion to the CGL policy as an endorsement which modified the CGL policy coverage. The language of this exclusion is straightforward, but unfortunately misconstrued by the Court:

This insurance does not apply to "bodily injury", "property damage", "personal and advertising injury" arising out of, caused by, resulting from, contributed to, aggravated by, or related to earthquake, landslide, mud flow, subsidence, settling, slipping, falling away, shrinking, expansion, caving in, shifting, eroding, rising, tilting or.any other movement of land, earth or mud.

The Court dlsregards its rules of eonstruetion and interprets the exclusion as ambiguous because it excludes all earth movement, natural and man-made. The basis for this puzzling conclusion on ambiguity comes from the Court's reliance on cases from other jurisdictions, and multiple errors in logic lead the Court to this point.

14 First, the cases relied upon by the Court all involve all-risk or homeowner's insurance-an entirely different basis for insurance than the CGL policy, Second, the Court only passes at construing the language of the policy and fails to inform the reader just what term is ambiguous. To be generous, the Court confuses a lack of restrictive adjectives in the exclusion for what it says is an ambiguity. The Court chooses not to limit itself to the agreement alone, instead adding restrictive language where the parties did not,. See ENI Producing Props, Program Ltd. P'ship 1988-I ex rel. Baytide Petroleum, Inc. v. Samson Inv. Co., 1999 OK 21, 117, 977 P.2d 1086, 1089 ("Whether the parties intentionally left out language ... or unwittingly neglected to account for it, this Court is nonetheless constrained by the agreement."). Third, a majority of the cases the Court discusses actually disagree with the Court's conclugion.on the ambiguous provision, each concluding that an earth-movement exelusion is not ambiguous.1

15 The Court next errs by misapplying the doctrine of reasonable expectations. See Max True Plastering Co. v. U.S. Fid. & Guar. Co., 1996 OK 28, T1, 912 P.2d 861, *636863. The Court relies on the self-serving subjective statements of the insured despite this Court's restrictive application of the doe-trine of reasonable expectations to only the "objectively reasonable expectations" of a like insured. Id. In hindsight, the insured is always going to allege the existence of coverage when in dispute. Yet Wilson Paving was in the excavating and trenching business, it was a sophisticated company, and it agreed to the endorsement to the CGL policy that added the exclusion. It is perhaps even more telling of the parties' intent that the exclusion was added as an endorsement, separate and apart from the list of exclusions in the main body of the CGL policy. The Court adopts the insured's subjective complaints as reasonable expectations; it then further errs when it agrees that the entire CGL policy is worthless because it does not cover trench cave-ins. This conclusion is unfair and inaccurate as the CGL policy covers a wide range of Wilson Paving's possible liabilities. What it specifically does not cover is this cave-in. The Court should refrain from indulging in the subjective complaints of the insured when the language is easily construed and understood and the doctrine of reasonable expectations looks at the objectively reasonable expectations of a like insured.

T6 If the Court were to devote even a cursory moment to construing the language, the need for the Court's tortuous path to its conclusion would be irrelevant. Our rules of contract construction forgo the need to rely on other courts' decisions. Our "cardinal rule" when examining insurance contracts "is to determine and give effect to the intent of the parties." In re Kaufman, 2001 OK 88, €13, 87 P.3d 845, 853. When policy provisions are clear, consistent, and unambiguous, we look to the plain and ordinary meaning of the policy language to determine and give effect to the parties' intent. Dodson v. S%. Paul Ins. Co., 1991 OK 24, 1 12, 812 P.2d 372, 376-77; 15 0.8.2011, §§ 152, 154, 160. And the first guidepost we must observe in insurance-contract construction is that "[plarties are at liberty to contract for insurance to cover such risks as they see fit and they are bound by terms of the contract." Cranfill v. Actno Life Ins. Co., 2002 OK 26, 1 5, 49 °P.8d 703, 707. We are not at liberty to rewrite the terms the parties negotiated. Id. The Court fails to take these rules to heart.

T7 The policy's plain language excludes coverage for any movement of land, earth, or mud. The endorsement applies to events related to earth movement. The cause of those events is not limited by the policy; this Court cannot in turn choose to limit those causes. The plain language establishes that the parties intended to extend this endorsement to earth movement whether natural or man-made. Yet the Court chooses to rewrite the exclusion and to ignore the intent of the parties apparent from the endorsement's plain language. The Court must refuse to rewrite policies to create distinctions where no language in the policy exists to support such a distinction. See Max True Plastering, 1996 OK 28, 120, 912 P.2d at 869 ("In interpreting an insurance contract, this Court will not make a better contract by altering a term for a party's benefit."). By refusing to read the policy language as written, the Court violates this governing tenant for construction of insurance contracts. See id. The Court indulges in a forced and constrained interpretation to reach a result that is repugnant to the plain language of the provision.

T8 The case before the Court should turn on a simple construction of the endorsement. The earth- movement exclusion bars coverage for bodily injury "arising out of ... caving in . of land, earth or mud." The endorsement's construction is dependent on the definition of the phrase "caving in." We define words in their ordinary meaning if the policy does not define them. Id. €19, 912 P.2d at 869. Merriam Webster's defines cave as "to fall in or down" or "to cause to fall or collapse." Merriam Webster, Cave, http://www. merriam-webster.com/dictionary/eave (last visited Mar. 4, 2015). Any injury caused by a cave-in or collapse of land, earth, or mud is excluded here. To quote the Court's recitation of facts: "At approximately 2:80 p.m. that same day, the trench in which Broom was working collapsed twice...." The cause of Broom's injuries is excluded from coverage under the endorsement to the Mid-Con*637tinent CGL policy. I refuse to rewrite this policy.

. See Peters Twp. Sch. Dist. v. Hartford Acc. & Indem. Co., 833 F.2d 32, 38 (3d Cir.1987); Fayad v. Clarendon Nat. Ins. Co., 899 S$o.2d 1082, 1088 (Fla.2005); Henning Nelson Const. Co. v. Fireman's Fund Am. Life Ins. Co., 383 NW2d 645, 652 (Minn.1986); Rankin ex rel. Rankin v. Gener-ali-U.8. Branch, 986 S.W.2d 237, 240 (Tenn.Ct. App.1998).