January 15, 2020

By Kent Bevan

In Messina v. Shelter Insurance Company, the plaintiff, Messina, insured his home using Shelter Insurance Company. A brick veneer on an exterior wall of the house collapsed and Messina filed a property damage claim with Shelter, which denied the claim. Messina then sued for breach of contract and eventually, the Circuit Court granted Shelter’s motion for summary judgment. Messina conceded that one of the causes of the wall collapse was explicitly excluded from coverage under the policy.

After the lawsuit was filed, Shelter hired an engineer to inspect the collapsed wall, and the engineer attributed the collapse to long term expansion and contraction of the wood sheathing, long-term corrosion of the brick nails and lack of overall maintenance. The Shelter engineer specially concluded that the wall did not collapse because of the force of the wind. Messina, on the other hand, hired a professional engineer who testified in deposition that he found preexisting weakness, deterioration in the mortar and corrosion and rusting of the metal connectors intended to hold the brick veneer to the wood sheathing. Messina’s engineer conceded that but for the long-term deterioration of the mortar and corrosion and rusting of the metal connectors, the wind would not have caused the brick veneer to collapse on its own.

The basis of Shelter’s summary judgment motion was that the uncontroverted facts show that Messina’s claim did not involve an accidental direct physical loss covered by the policy, because the deterioration and bowing of the brick veneer had not occurred abruptly. The trial court granted summary judgment to Shelter.

On appeal Messina argued that there was a genuine factual issue as to whether wind velocity caused the collapse of the wall and therefore whether the collapse was caused by an abrupt event could be considered an “accidental direct physical loss.” Messina also argued in a second point that the policy exclusions could not defeat coverage because there was a genuine issue of fact as to whether the wall’s preexisting deteriorated condition was known or visible to him before the collapse.

The appellate court cited various policy provisions including the definition of accident as, “an action or occurrence, or a series of actions or occurrences, that started abruptly, during the policy period, and directly resulting in property damage.” Naturally, there were various exclusions contained in the policy. The court determined that the plaintiff, Messina, conceded that the deterioration, corrosion and rust of the wall’s components were a cause of the wall’s collapse, even if other circumstances acted in concert with a preexisting condition. The court noted, using Bowan Exrel Bowan v. Gen. Sec. Indemnity Company of Arizona, that the state of Missouri holds that where an insured risk and an excluded risk constitute concurrent proximate cause of an accident, a liability insurer is liable as long as one of the causes is covered by the policy.

Under the concurrent proximate cause rule, an insurance policy is construed to provide coverage where an injury was proximately caused by two events, even if one of those events was subject to an exclusion, if the differing allegations of causation are independent and distinct. The appellate court also acknowledged that a policy can be written to exclude the operation of this concurrent proximate causation principal. Unambiguous provisions that preclude coverage for losses caused directly or indirectly by an excluded event “regardless of any other cause or event that contributes concurrently or in any sequence to the loss” are enforceable. Under such anti-concurrent causation provisions, an exclusion is an exclusion regardless of any other cause that contributes to the loss, either concurrently or in any sequence to the loss.

The court also found that testimony of the insured’s expert witness conceded that the brick veneer would not have collapsed but for the preexisting deterioration of the mortar and the corrosion and rust of the nails holding the veneer wall to the underlying sheathing. That concession defeated coverage regardless of the fact that other events or conditions not excluded contributed to the loss or damage. The Court of Appeals for the Western District of Missouri affirmed the trial court’s granting of summary judgment to Shelter.