NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@state.vt.us or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be
made before this opinion goes to press.


                                         2015 VT 98

                                         No. 2014-087

Equinox on the Battenkill Management Association, Inc.        Supreme Court

                                                              On Appeal from
   v.                                                         Superior Court, Bennington Unit,
                                                              Civil Division

Philadelphia Indemnity Insurance Company, Inc.                October Term, 2014


John P. Wesley, J.

Joel P. Iannuzzi of Cleary Shahi & Aicher, P.C., Rutland, for Plaintiff-Appellant.

Richard J. Windish and Susan J. Manley of Hayes & Windish, Woodstock, for
 Defendant-Appellee


PRESENT: Reiber, C.J., Dooley, Skoglund and Robinson, JJ., and Morris, Supr. J. (Ret.),
         Specially Assigned


        ¶ 1.   REIBER, C.J.        Equinox on the Battenkill Management Association, Inc.,

appeals a superior court summary-judgment order denying insurance coverage. The appeal

arises out of a declaratory judgment action against management association’s insurer,

Philadelphia Indemnity Insurance Company, Inc., to determine coverage under a commercial

general liability policy for damage to cantilevered balconies on condominium units in

Manchester.

        ¶ 2.   In this appeal, we are asked to decide whether our decision in Gage v. Union

Mutual Fire Insurance Co. remains good law with regards to the meaning of “collapse” and

whether Gage controls the result here. 122 Vt. 246, 169 A.2d 29 (1961). We conclude that the
policy language in this dispute is broader than the language in Gage and that therefore Gage does

not control. We reverse the trial court’s summary judgment and remand to resolve disputed

questions of fact and interpret the applicable policy language.

       ¶ 3.    Management association manages a condominium complex in Manchester. Many

units in the condominium complex were constructed with cantilevered balconies. The balconies

have a history of repairs. In 2012, management association sought coverage for damage to the

balconies, which insurer denied. The 2012 insurance policy between management association

and insurer provides that insurer “will not pay for ‘loss’ caused by or resulting from . . . [f]aulty,

inadequate, or defective . . . [d]esign, specifications, workmanship, repair, construction,

renovation, remodeling, grading, [or] compaction” (the “defective-workmanship exclusion”).

However, the policy also provides that “if ‘loss’ by a Covered Cause of Loss results, [insurer]

will pay for that resulting ‘loss.’ ”      In the endorsement entitled “Additional Coverage -

Collapse,” the policy provides, “We will pay for ‘loss’ caused by or resulting from risks of direct

physical ‘loss’ involving collapse of ‘buildings’ or any part of ‘buildings’ caused only by one or

more of the following: . . . [h]idden decay.” The policy defines “loss” as “accidental loss or

damage,” and “buildings” as “buildings or structures.” The policy does not define “collapse,”

except to exclude “settling, cracking, shrinkage, bulging or expansion.”

       ¶ 4.    In its statement of undisputed facts submitted in support of its motion for

summary judgment, management association claimed that when it carried out a deck-

replacement program in 2007 and 2008, it encountered certain structural problems at Unit I-4,

including water damage to sheathing and studs behind lower-level exterior clapboards and

cracking in several exposed joists beneath the second-floor balcony.           Steps were taken to

strengthen the second-floor balcony. Management association discovered similar problems at

other units and took steps to reinforce the balconies at those units in 2008, 2010, and 2011.



                                                  2
According to the statement of undisputed facts, none of these repairs or improvements required

exposing balcony joists within the interior of the units.

       ¶ 5.    Management association claims that it first discovered evidence of damage on the

interior portions of the cantilevered balcony joists in September 2012, while inspecting the

balcony at Unit K-3, which had undergone a “partial collapse.”1 Prior to this inspection, none of

the interior portions of any of the joists had been inspected or exposed. Management association

further claims that during this time, the balcony at Unit M-7 also suffered a “partial collapse.”

       ¶ 6.    In October 2012, management association filed a first-party claim with insurer

under the “Additional Coverage” endorsement, alleging that hidden decay had caused the

damage. Management association seeks coverage for the balconies that are affected by the same

kind of damage that occurred at K-3 and M-7.2 The summary-judgment record reveals the

efforts of the parties to engage expert support for their respective positions regarding complex

questions of damage and causation. These efforts focused on the K-3 and M-7 balconies.

       ¶ 7.    The association hired Criterium-Lalancette Engineers to conduct a visual

inspection later that month.      Criterium-Lalancette noted significant evidence of moisture

infiltration in its October 23 report. The report recommended that the balconies be taken out of

service.

       ¶ 8.    Management association claims that the M-7 balcony subsequently suffered a full

collapse at some point in November 2012. While securing the building against winter weather,

       1
          Insurer did not oppose management association’s use of the phrase “partial collapse” to
describe the damage to the balconies. We note that “[t]he term ‘partial collapse’ . . . may be an
epithet of convenience but it is not to be regarded as a term of construction.” Gage, 122 Vt. at
250, 169 A.2d at 31. In this case, as in Gage, “[t]he policy says nothing about ‘partial
collapse.’ ” Id.
       2
          When questioned at oral argument, counsel for management association responded that
there are approximately ninety balconies at the condominium complex, of which between twelve
and fifteen are in “various stages of collapse.” The location schedule in the insurance policy lists
over fifty residential buildings with multiple units, but does not indicate which units have
balconies.
                                                 3
management association removed supporting jack posts and disconnected railings connecting the

balcony to the building, “resulting in the balcony falling to the deck below.”

        ¶ 9.    Insurer hired Barbara Knight of Knight Consulting Engineers, Inc., to conduct an

inspection at the condominium to determine the cause of the damage to the balconies. Knight

conducted an inspection on November 2. Her report from November 12 noted that she did not

observe any rot on exposed areas of the balcony joists, but did opine that construction and design

issues contributed to the balcony failures.     Insurer denied coverage for the damage to the

balconies in February 2013.

        ¶ 10.   Management association requested that insurer reconsider and provided additional

evidence. Knight reviewed the additional evidence, including photographs of where the balcony

joists penetrated the building wall that revealed internal rot. Based on the additional evidence,

Knight issued a supplemental report in April 2013 that attributed the structural failure to rot and

deterioration of the joists.

        ¶ 11.   In May 2013, insurer reaffirmed its no-coverage position. In its second denial

letter, insurer raised objections to management association’s claim under the policy’s

endorsement for “Additional Coverage” for “collapse.” Insurer claimed that the cantilevered

balconies did not actually collapse, and also that, even if the 2012 damage did fit within the

definition of “collapse,” the cause could not be for causes listed in the endorsement because

management association allegedly had knowledge of defects in the balconies as early as 2007.

        ¶ 12.   Legal proceedings began in August 2013 when management association filed an

action for declaratory judgment in the Superior Court, Civil Division, Bennington Unit.

Management association sought an order declaring that the policy provides coverage for the

balconies’ failure.    In its answer, insurer denied coverage for the damage and asserted as

defenses the exclusions and limitations in the policy, as well as the objections it raised in its

claim-denial letters. Management association filed a motion for summary judgment, arguing

                                                 4
that: (1) the damage to the balconies qualified under the policy’s “collapse” coverage; (2) the

defective-workmanship exclusion did not apply to its claim; and (3) the facts do not support

insurer’s claim that management association knew as early as 2007 that the balconies were

structurally impaired.

       ¶ 13.    Insurer filed a cross-motion for summary judgment, arguing that the damage to

the balconies was not covered under the additional coverage provision because non-enumerated

causes contributed to the damage: defective construction, faulty design, poor choice of materials,

and rot. Moreover, insurer argued that the balconies did not collapse as that term was defined in

Gage, 122 at 248-49, 169 A.2d at 30. Insurer also responded to management association’s

argument that an exception to the defective-workmanship exclusion applies to the damage.

       ¶ 14.    Management association opposed the cross motion, arguing that the language of

the policy is distinct from the language at issue in Gage. Management association also argued

that whether faulty workmanship contributed to the balcony failures was a disputed material fact

that precludes granting summary judgment on the grounds that the defective-workmanship

exclusion applied. Management association filed a statement of disputed material facts in

support of this argument—the statement refers to an affidavit from David Capen, a building

contractor, which refutes Barbara Knight’s opinion that the balconies were constructed

improperly.     Furthermore, management association argued that even if insurer could prove

defective construction was a contributing factor to the balconies’ damage, the defective-

workmanship exclusion would not apply because of the provision providing additional coverage

for collapse.

       ¶ 15.    The superior court never reached these arguments and did not address the

question of disputed facts. The court denied management association’s motion and granted

insurer’s cross-motion, concluding that insurer was entitled to judgment as a matter of law. The

court based its decision on the meaning of “collapse,” concluding that the damage to the

                                                5
balconies did not fit within the definition from Gage. The decision did not reach the parties’

other arguments regarding the defective-workmanship exclusion or the cause of the damage.

With regard to management association’s contention that the language of its policy with insurer

substantially differed from the policy in Gage, the court stated only that “[t]he exclusion of

collapse for settling, cracking, shrinkage serves to limit the meaning of collapse, not to expand

it.” The court did not interpret any other policy language or the remaining language in the phrase

“risks of direct physical loss involving collapse.” This appeal followed.

       ¶ 16.   In deciding whether summary judgment is proper, we apply the same standard as

the superior court. Messier v. Metro. Life Ins. Co., 154 Vt. 406, 409, 578 A.2d 98, 99 (1990). If

genuine issues of material fact exist, we reverse a grant of summary judgment.                  Id.

“[I]nterpretation of an insurance policy, like other contracts, is a question of law. Our review is

therefore nondeferential and plenary.” Coop. Ins. Cos. v. Woodward, 2012 VT 22, ¶ 8, 191 Vt.

348, 45 A.3d 89 (citation omitted). In interpreting the language of an insurance policy, “we look

at all the provisions . . . together and view the policy in its entirety.” McAlister v. Vt. Prop. &

Cas. Ins. Guar. Ass’n, 2006 VT 85, ¶ 17, 180 Vt. 203, 908 A.2d 455.

       ¶ 17.   We agree with management association that the language of the policy in this case

and the policy in Gage have different meanings. We therefore conclude that the superior court

erred in granting summary judgment on the ground that “the balconies did not collapse.” The

court’s error lies in interpreting the insurance policy in a way that equates its language with the

meaning of “collapse” that we adopted in Gage and then basing its decision solely on that

interpretation. The language in the Gage policy specifically covered “all direct loss to the

property by . . . [c]ollapse.” Gage, 122 Vt. at 246, 169 A.2d at 29. The language of the policy

between management association and insurer provides that insurer will pay for “ ‘loss’ caused by

or resulting from risks of direct physical ‘loss’ involving collapse of ‘buildings’ or any part of

‘buildings.’ ” (Emphasis added.)

                                                6
       ¶ 18.   The difference in language is great. The language in the policy between insurer

and management association plainly contemplates damage beyond the definition of “collapse”

that we adopted in Gage. Because it covered only “collapse,” the insurance policy in Gage

provided coverage only where there had been damage such as a “falling in, . . . loss of

shape, . . . [or] reduction to flattened form or rubble of the building or any part thereof.” Gage,

122 Vt. at 249, 169 A.2d at 30-31 (quoting Cent. Mut. Ins. Co. v. Royal, 113 So. 2d 680, 683

(Ala. 1959)).3 Here, however, the policy contains additional language beyond “collapse.” The

balconies may incur damage from a “risk of direct physical ‘loss’ involving collapse” even

where they have not detached and completely fallen away from the buildings. (Emphasis added).

The court gave no consideration to the additional language, and so the question therefore remains

whether the damage to the balconies falls within this policy’s coverage.

       ¶ 19.   We are not alone in finding that the language of the policy in this case—“ ‘loss’

caused by or resulting from risks of direct physical ‘loss’ involving collapse”—has a broader

meaning than the language in Gage. Confronted with policies containing similar or identical

language to the policy at issue here, other states have concluded that such terms are at least

ambiguous, leading to coverage conclusions in favor of those insured. Such language may even

expressly expand the scope of coverage if a court finds that a catastrophic failure is imminent or



       3
          In deciding Gage, we cited Royal, a decision from the Supreme Court of Alabama, as
being particularly illuminating. Gage, 122 Vt. at 246, 169 A.2d at 30. Royal concluded that no
collapse had occurred where cracks had developed in a building’s walls and foundation. 113 So.
2d at 683. A subsequent decision from the Court of Civil Appeals of Alabama determined that a
“sufficient and actual collapse . . . [that] destroy[ed] the structural integrity of the building”
occurred where termite damaged caused a house’s floor to sag about eight inches but did not
“reduce the house to flattened form or rubble.” Fid. Cas. Co. of N.Y. v. Mitchell, 503 So. 2d
870, 871 (Ala. Civ. App. 1987). The insured in Mitchell presented evidence that the building
was so severely damaged that it could not be safely inhabited. Id.; see also State Farm Fire &
Cas. Co. v. Slade, 747 So. 2d 293, 325-26 (Ala. 1999) (discussing Royal and Mitchell and
finding no “collapse” coverage where insured failed to present “evidence indicating that any part
of their home had actually fallen in, i.e., collapsed, or that the structural integrity of their home
was so damaged that their home was unfit for human habitation”).
                                                  7
that the insured building’s structural integrity has degraded to the point where it cannot be safely

and reliably used.

       ¶ 20.   The Supreme Court of South Carolina has interpreted the language at issue to

have a broader meaning than a policy that covers only “collapse.” Ocean Winds Council of Co-

Owners, Inc. v. Auto-Owner Ins. Co., 565 S.E.2d 306, 307-08 (S.C. 2002). In determining the

question of when coverage is triggered under a policy that covered “risks of direct physical loss

involving collapse,” the court held that the “phrase is more expansive than the word ‘collapse’

and appears to cover even the threat of loss from collapse.” Id. The court determined that “a

requirement of imminent collapse is the most reasonable construction of the policy clause

covering ‘risks of direct physical loss involving collapse.’ ” Id. at 308.

       ¶ 21.   The Supreme Court of Pennsylvania has also considered a policy that provided

coverage for “damage caused by or resulting from risks of direct physical loss involving collapse

of a building or any part of a building.” 401 Fourth St., Inc. v. Investors Ins. Grp., 879 A.2d 166,

168 (Pa. 2005). The court did not limit itself merely to the meaning of “collapse,” but rather

focused on the phrase, “risks of direct physical loss involving collapse.” Id. at 172. The court

concluded that the term is ambiguous in that “the provision contemplates broader coverage than

policy language simply employing the term ‘collapse.’ ” Id. at 174. Construing the term in favor

of the insured, the Pennsylvania high court held that a policy providing coverage for risks of

direct physical loss involving collapse covers “damage caused by the falling down, or imminent

falling down of a building or part thereof.” Id.

       ¶ 22.   More recently, the Supreme Court of South Dakota took up the question in a case

involving an insurance policy with identical language. Zoo Props., LLP v. Midwest Family Mut.

Ins. Co., 2011 S.D. 11, ¶¶ 3-4, 797 N.W.2d 779. That court agreed with the Supreme Court of

South Carolina in deciding that a term extending coverage to “loss or damage caused by or

resulting from risks of direct physical loss involving collapse” was ambiguous. Id. ¶ 11 (citing

                                                   8
Ocean Winds, 565 S.E.2d at 308). The South Dakota high court construed the phrase to be

broader than the language used in the Gage policy, which required the court to interpret only a

single word, “collapse.” Id. ¶¶ 11-12. Like the high courts of South Carolina and Pennsylvania,

the Supreme Court of South Dakota also interpreted the language at issue to include imminent

collapse. Id. ¶ 12.

       ¶ 23.   While these three jurisdictions include “imminent collapse” within the meaning of

“risks of direct physical loss involving collapse,” other jurisdictions have taken different

approaches when interpreting policies with the same language. Indeed, the Supreme Court of

South Carolina observed that other states’ constructions fall across a wide spectrum. Ocean

Winds, 565 S.E.2d at 308. At one end of the spectrum is the most stringent interpretation, which

still requires “actual collapse.” See Heintz v. U.S. Fid. & Guar. Co., 730 S.W.2d 268, 269 (Mo.

Ct. App. 1987) (interpreting policy containing “risk of direct physical loss involving collapse”

language and concluding that “[a] condition of impending collapse is insufficient”). At the other

end is the most lenient interpretation, which covers mere “substantial impairment” of the

building.   See Am. Concept Ins. Co. v. Jones, 935 F. Supp. 1220, 1228 (D. Utah 1996)

(construing same language to require that insured show only issue of material fact that covered

building “sustained substantial impairment to its structural integrity” to successfully oppose

motion for summary judgment). In between either extreme are states that have construed the

phrase to require “imminent collapse.”

       ¶ 24.   We reject the most stringent interpretation requiring actual collapse. The single

word “collapse” and the phrase “risk of loss involving collapse” cannot mean the same thing.

We also reject as overly broad an interpretation that requires only “substantial impairment.” In

choosing the middle ground, we conclude that “a risk of direct physical loss involving collapse”

means a risk of imminent collapse.



                                               9
       ¶ 25.     Having reached this conclusion, we are not in a position to determine whether

there is coverage for the damaged balconies. The superior court’s decision is insufficient for us

to construe or deny coverage as a matter of law given the disputed cause, nature, and extent of

the damage. There are obvious factual disputes between the parties. On remand, the court must

resolve questions of fact about the damage claimed.            Summary judgment is therefore

inappropriate.

       ¶ 26.     In addition to the question of whether a policy covering “risk of direct physical

‘loss’ involving collapse” covers the damage to the balconies in this dispute, our conclusion also

reopens questions of construction that the superior court never reached. Even applying the “risk

of imminent collapse” standard to the facts, the court may determine that the policy language is

ambiguous as a matter of law and construe the ambiguity favorably for management association.

Cf. Fireman’s Fund Ins. Co. v. CNA Ins. Co., 2004 VT 93, ¶ 9, 177 Vt. 215, 862 A.2d 251

(“Any ambiguity will be resolved in the insured’s favor, but we will not deprive the insurer of

unambiguous terms placed in the contract for its benefit.”).           The court can make this

determination only once it has resolved the factual issues. The court may also need to determine

whether the defective-workmanship exclusion operates to deny coverage. On remand, the court

must therefore resolve questions of fact about the damage before deciding whether the policy

provides or excludes coverage. These issues are for the court to determine in the first instance.

       ¶ 27.     In short, by basing its decision solely on its conclusion that the damage was not

caused by “collapse,” as we interpreted the word in Gage, the disputed facts apparent from the

summary-judgment filings alone make clear that a number of unresolved legal and factual issues

remain, including: (1) whether the damage to the balconies constitutes losses caused by or

resulting from risks of direct physical loss involving collapse; (2) whether this policy language

when applied is ambiguous as a matter of law; (3) what caused the damage; and (4) whether the

defective-workmanship exclusion applies to the claim. Although our own interpretation of

                                                10
insurance policy language is plenary and non-deferential, we decline to address these questions

in the absence of the superior court’s initial construction of the policy provisions in the context

of its findings regarding all relevant facts.

        Reversed and remanded for further proceedings consistent with this opinion.


                                                FOR THE COURT:



                                                Chief Justice


        ¶ 28.   ROBINSON, J., concurring in the judgment. I concur in the result, but write

separately to emphasize the ways in which I part ways with the majority’s approach.

        ¶ 29.   First and foremost, I simply don’t understand the majority’s instructions to the

trial court with respect to the scope of the “collapse” coverage. The majority concludes that the

proper construction of the language in question, providing for coverage for “ ‘loss’ caused by or

resulting from risks of direct physical ‘loss’ involving collapse of ‘buildings’ or any part of

‘buildings,’ ” is not governed by Gage. Instead, the majority holds—and I agree—that the policy

language in this case extends coverage to circumstances in which there is a risk of imminent

collapse.    Ante, ¶ 24. Given the conflicting evidence in the summary-judgment record

concerning the nature and extent of the risk of imminent collapse, the majority concludes that

summary judgment on the applicability of the collapse coverage for either party is inappropriate.

So far, so good.

        ¶ 30.   But then the majority says something puzzling:

                Even applying the “risk of imminent collapse” standard to the
                facts, the court may determine that the policy language is
                ambiguous as a matter of law and construe the ambiguity favorably
                for management association.          The court can make this
                determination only once it has resolved the factual issues.

Ante, ¶ 26 (citation omitted).

                                                11
        ¶ 31.   This statement is hard to understand for several reasons. For one, in the preceding

paragraphs the majority construes the contract and lays down the standard by which the

“collapse” coverage is to be evaluated. Ante, ¶¶ 17-24. By then suggesting that in fact the

contract may be ambiguous and thus have some different meaning, this statement seems to walk

back the conclusion that the majority has just articulated. It’s hard to see what guidance, if any,

this provides the trial court.

        ¶ 32.   Moreover, the question of whether a contract is ambiguous is a question of law.

See In re Spear, 2014 VT 57, ¶ 15, ___ Vt. ___, 99 A.3d 618 (“The threshold question of

whether contract language is ambiguous is a question of law.”) (citing Isbrandtsen v. N. Branch

Corp., 150 Vt. 575, 577, 556 A.2d 81, 83 (1988)). See also Haber v. St. Paul Guardian Ins. Co.,

137 F.3d 691, 695 (2d Cir. 1998) (“Whether contract language is ambiguous is a question of law,

which we review de novo”); Baybank v. Vt. Nat’l Bank, 118 F.3d 30, 33 (1st Cir. 1997) (“In

Vermont, whether a contract is ambiguous is a question of law.”); 1 B. O’Donnell, Law and

Practice of Insurance Coverage Litigation § 1.2 (2000) (“The interpretation of an insurance

policy and the identification of ambiguous policy provisions typically present questions of law

subject to de novo review.”); 11 R. Lord, Williston on Contracts § 30:5, at 64 (4th ed. 1999)

[hereinafter Williston] (“The determination of whether a contract is ambiguous is a question of

law for the court”); 5 M. Niffin, Corbin on Contracts § 24.30, at 330 (rev. ed. 1998) (“The

decision as to whether a contract is ambiguous is made by the court”); 2 S. Plitt et al., Couch on

Insurance § 21:13 (3d ed. 1995) (“Whether or not a contract of insurance is ambiguous is a

question of law for the court.”); R. Warner, All Mixed Up About Contract: When Is Contract

Interpretation a Legal Question and When Is It a Fact Question?, 5 Va. L. & Bus. Rev. 81, 92

(2010) (“[T]he interpretation of insurance policies is almost always a legal issue”). If this




                                                12
contract is ambiguous, now is the time for us to say so, and to invite the court on remand to

consider evidence surrounding the execution of the contract to resolve any ambiguity.

       ¶ 33.   Moreover, the question of whether the contract is ambiguous is answered with

reference to the contract itself, or, at most, the contract and a narrow class of extrinsic evidence

relating to the formation of the contract. See Spear, 2014 VT 57, ¶ 15 (“When addressing the

threshold question of whether ambiguity exists, a court may consider limited extrinsic evidence,

including the circumstances surrounding the making of the agreement as well as the object,

nature and subject matter of the writing.” (emphasis added) (quotation omitted)); Cameron’s

Run, LLP v. Frohock, 2010 VT 60, ¶ 20, 188 Vt. 610, 9 A.3d 664 (mem.) (“The court may

consider limited extrinsic evidence of circumstances surrounding the making of the agreement in

determining whether the writing is ambiguous, which is a question of law subject to de novo

review.” (quotation omitted)); Breslauer v. Fayston Sch. Dist., 163 Vt. 416, 425, 659 A.2d 1129,

1135 (1995) (noting that in making legal determination as to whether contract is ambiguous,

court may consider “evidence as to the circumstances surrounding the making of the agreement

as well as the object, nature and subject matter of the writing” (quoting Isbrandtsen, 150 Vt. at

578, 556 A.2d at 84)); see also Williston § 30:5, at 67-68 (“While there is authority that the court

is limited in its consideration solely to the face of the written agreement, it is also held that a

court may provisionally receive . . . all credible evidence concerning the parties’ intentions to

determine whether the language of the contract is reasonably susceptible to the interpretation

urged by the party claiming ambiguity.” (footnotes omitted)). No evidence about the balconies

and joists can or should advance the analysis of whether this contract is ambiguous and how it

should be construed.     The majority’s suggestion to the contrary upends black-letter law

concerning the construction of contracts, and sends mixed signals to the trial court on remand.

       ¶ 34.   Second, I would not remand with respect to the host of other legal issues squarely

presented on appeal. The majority leaves it to the trial court to address in the first instance the

                                                13
purely legal questions that are subject to de novo review on appeal. One issue squarely raised by

the motions below and briefed on appeal is whether, assuming plaintiff can show a collapse, a

factfinder could conclude on this summary-judgment record that the collapse resulted from one

of the covered causes of collapse—in particular, from “hidden decay.” If a factfinder could

conclude that the loss resulted from hidden decay, Philadelphia’s summary-judgment motion

would be defeated. If a factfinder could conclude that the loss did not result from hidden decay,

Equinox’s summary-judgment motion would be defeated.

       ¶ 35.   The resolution of this question is a matter of law. See Rouleau v. Williamstown

Sch. Bd., 2005 VT 131, ¶ 2, 179 Vt. 576, 892 A.2d 223 (mem.); Washington v. Pierce, 2005 VT

125, ¶ 17, 179 Vt. 318, 895 A.2d 173. By definition, a summary-judgment question does not

require a weighing of evidence or judgments about credibility. See Sabia v. Neville, 165 Vt.

515, 523, 687 A.2d 469, 474 (1996) (“In ruling on a motion for summary judgment, it is not

appropriate for us to resolve disputed issues of fact or questions of credibility.”). And the trial

court’s judgment on this question is subject to de novo review. Rouleau, 2005 VT 131, ¶ 2;

Washington, 2005 VT 125, ¶ 17; Wesco, 2004 VT 102, ¶ 9.

       ¶ 36.   If, by remanding, the majority is implicitly concluding that there is sufficient

evidence on both sides of the “hidden decay” question to defeat summary judgment, I do not

disagree. But the majority neither says this nor undertakes any sort of analysis of the summary-

judgment record to support such a conclusion. Instead, the majority defers to the trial court to

make its own legal ruling on the summary-judgment motion in the first instance, even though its

analysis will be subject to de novo review. See N.H. Right to Life PAC v. Gardner, 99 F.3d 8,

18 (1st Cir. 1996) (“Where the merits comprise a purely legal issue, reviewable de novo on

appeal and susceptible of determination without additional factfinding, a remand ordinarily will

serve no useful purpose.”).



                                                14
        ¶ 37.   Similarly, the questions of whether the general policy exclusion of coverage for

losses resulting from defective design or construction applies to the collapse coverage provisions

appended to the contract as “Additional Coverage,” and whether, if so, the “resulting loss”

exception to the exclusion applies, are all legal questions that were raised below, have been

briefed on appeal, and are potentially dispositive of this case. I believe we should have reached

them.

        ¶ 38.   The majority’s approach may reflect an appropriate recognition of the wisdom of

the trial court, and a desire to consider that court’s legal analysis of issues that it did not reach the

first time around. But I fear that it leaves the parties and trial court with no guidance, leaves the

trial court with a considerable amount of work, and potentially prolongs an already lengthy

course of litigation for all concerned.




                                                  Associate Justice




                                                   15
