[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.


                                               2
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.




                                            3
          {¶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




                                            4
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.




                                             5
       {¶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




                                             6
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.




                                           7
       {¶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.




                                             8
      {¶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.




                                           9
