MEMORANDUM DECISION
                                                              Aug 06 2015, 8:22 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Kevin L. Moyer                                            Grover B. Davis
Moyer & Irk, P.C.                                         McClure McClure & Davis
Lebanon, Indiana                                          Indianapolis, Indiana

                                                          C. Zachary Ransel
                                                          Fisher Kanaris, P.C.
                                                          Chicago, Illinois



                                             IN THE
    COURT OF APPEALS OF INDIANA

Greater New Jerusalem Temple                              August 6, 2015
of Truth, Inc.,                                           Court of Appeals Case No.
                                                          49A02-1501-PL-61
Appellant-Plaintiff,
                                                          Appeal from the Marion Superior
        v.                                                Court

                                                          The Honorable Thomas J. Carroll,
Sentinel Insurance Company,                               Judge
Ltd.,
                                                          Case No. 49D06-1107-PL-27306
Appellee-Defendant




Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1501-PL-61 | August 6, 2015    Page 1 of 9
                                             Case Summary
[1]   In December 2009, Greater New Jerusalem Temple of Truth, Inc. (“GNJ”),

      purchased a commercial policy from Sentinel Insurance Company, Ltd.

      (“Sentinel”), that provided coverage for damage caused by “collapse” under

      certain circumstances. In October 2010, ceiling tiles fell onto the floor of GNJ’s

      church sanctuary. GNJ filed a claim with Sentinel, which denied the claim on

      the basis that the damage caused by the fallen ceiling tiles was not covered

      under the policy. GNJ filed a complaint against Sentinel alleging breach of

      contract and bad faith and seeking punitive damages. Sentinel filed a motion

      for summary judgment, which the trial court granted.


[2]   On appeal, GNJ contends that the trial court erred in granting Sentinel’s

      summary judgment motion. We disagree and therefore affirm.


                                 Facts and Procedural History
[3]   The relevant facts are undisputed. Bishop Herman Davis is the leader of GNJ,

      which purchased a 1950s-era church building in Indianapolis in 2002. Later

      that year, GNJ hired Master Built Construction, Inc. (“Master Built”), to repair

      the roof after Bishop Davis noticed water leaking from the ceiling. Master

      Built’s contract with GNJ called for installing new shingles, repairing “all

      broken rafters,” and reinforcing the rafters “to prevent further spreading of the

      roof system.” Appellant’s App. at 142.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1501-PL-61 | August 6, 2015   Page 2 of 9
[4]   In 2006 or 2007, Bishop Davis noticed that the ceiling tiles in the sanctuary

      were separating. In an attempt to fix the problem, one of GNJ’s deacons went

      into the attic and nailed sixteen-foot 2 × 8 boards to the roof trusses.


[5]   In June 2009, GNJ asked Higginson Construction to inspect the roof. Owner

      James Higginson found fifteen broken roof trusses and submitted a repair

      proposal totaling $5500 to Bishop Davis. In July 2009, Higginson gave Bishop

      Davis another proposal outlining additional “structural issues” and “roof

      problems” and estimating the total repair cost at over $45,000. Id. at 164. GNJ

      did not have Higginson perform any of the recommended repairs.


[6]   In September 2009, GNJ’s attorney sent Master Built a letter citing the

      following “problems” that had “occurred to the structure of the building” due to

      its alleged negligence in repairing the roof in 2003:

              1) There were three layers of shingles placed on the roof causing the
              structure to shift because of the extra weight,

              2) No air vents were inserted in the roof, thus no air flow causing the
              wood to deteriorate in the upper portion under the roof, causing the
              “A Frame” of the building to crack,

              3) The bricks near the top of the building are shifting and beginning to
              lean and the walls are cracking due to the weight of the shingles,

              4) The windows are slipping from their frames due to pressure and the
              frame work shift, and

              5) Ceiling tiles are beginning to buck out and slip because of the
              moisture entering through the upper level and because of no
              ventilation.
      Id. at 167-68.
      Court of Appeals of Indiana | Memorandum Decision 49A02-1501-PL-61 | August 6, 2015   Page 3 of 9
[7]   In December 2009, GNJ switched insurance carriers and purchased a

      commercial policy from Sentinel that reads in pertinent part as follows:

              B. EXCLUSIONS

              ….

              2. We will not pay for physical loss or physical damage caused by or
              resulting from:

              ….

              h. Collapse: Collapse, except as provided in the Additional Coverage
              for Collapse. But if loss or damage by a Covered Cause of Loss results
              at the “scheduled premises”, we will pay for that resulting loss or
              damage.
      Id. at 97-98.

              5. Additional Coverages

              a. Collapse

              (1) With respect to Buildings:

              (a) Collapse means an abrupt falling down or caving in of a building or
              any part of a building with the result that the building cannot be
              occupied for its intended purpose;

              (b) A building or any part of a building that is in danger of falling
              down or caving in is not considered to be in a state of collapse;

              (c) A part of a building that is standing is not considered to be in a
              state of collapse even if it has separated from another part of the
              building;

              (d) A building that is standing or any part of a building that is standing
              is not considered to be in a state of collapse even if it shows evidence
              of cracking, bulging, sagging, bending, leaning, settling, shrinkage, or

      Court of Appeals of Indiana | Memorandum Decision 49A02-1501-PL-61 | August 6, 2015   Page 4 of 9
              expansion.

              (2) We will pay for direct physical loss or physical damage caused by
              or resulting from risks of collapse of a building or any part of a
              building that is insured by this policy caused only by one or more of
              the following:

              (a) “Specified cause of loss” or breakage of building glass, if such loss
              or breakage was covered by this policy;

              (b) Decay that is hidden from view, unless the presence of such decay
              was known to an insured prior to collapse;

              (c) Insect or vermin damage that is hidden from view, unless the
              presence of such damage is known to an insured prior to collapse;

              (d) Weight of people or personal property;

              (e) Weight of rain that collects on a roof; and

              (f) Use of defective material or methods in construction, remodeling or
              renovation if the collapse occurs during the course of the construction,
              remodeling or renovation.
      Id. at 84.


[8]   In October 2010, ceiling tiles fell onto the sanctuary floor. GNJ submitted a

      claim to Sentinel, which had forensic structural engineer Brian Kinsey

      investigate the incident. In December 2010, Kinsey submitted a report to

      Sentinel that reads in relevant part as follows:

              The east and west exterior walls are out-of-plumb. The west wall
              measured 9 inches out-of-plumb. There are several horizontal cracks
              in the east and west walls through the mortar joints. The cause of the
              out-of-plumb condition of the walls is due to the outward thrust on the
              walls caused by ongoing outward lateral movement of the roof/ceiling
              trusses.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1501-PL-61 | August 6, 2015   Page 5 of 9
              On the interior, a 6’ by 8’ section of ceiling finish (12” square
              fiberboard tiles) have come loose from the ceiling. The cause of the
              ceiling finish failure is due to the outward movement of the
              roof/ceiling structure.

              Inspection in the attic revealed the cause of the outward movement of
              the roof/ceiling structure. Several cracks and splits exist in the 2 x 8
              lower chord members of the trusses. The loss of strength resulting
              from the failed truss members has allowed the trusses to spread
              outward, causing the roof to sag downward and the walls upon which
              the trusses rest (the east and west exterior walls) to push outward. The
              trusses are under-designed. The 2 x 8 members are too small given the
              loss of section (wood) at the bolted attachment locations where holes
              are drilled in the members.

              Repairs have been previously made, reportedly 3 years ago, in an
              attempt to arrest the outward movement of the trusses. Sixteen foot
              long 2 x 8’s have been nailed to the trusses at approximately every 8
              feet as a kind of “collar tie” in an effort to stabilize the trusses and
              prevent further movement. Obviously, with the recent detachment of
              a section of ceiling tile, the “fix” has not arrested further movement of
              the trusses.

              Because future movement of the roof/ceiling system is likely, coupled
              with the fact that the exterior masonry walls are significantly out-of-
              plumb and therefore in a structurally precarious condition, it is our
              technical opinion that a catastrophic collapse of the roof/ceiling and
              walls could occur without warning. We therefore highly recommend
              that the building not be further occupied.

              In our opinion, further patchwork repairs to reinforce the roof/ceiling
              and walls will not be cost effective. The entire east and west walls
              need to be rebuilt, as does the entire roof/ceiling structure.
      Appellee’s App. at 11-12.


[9]   Sentinel denied GNJ’s claim on the basis that the damage caused by the fallen

      ceiling tiles was not covered under the policy. In April 2011, Sentinel canceled

      the policy. Three months later, the church’s roof caved in.
      Court of Appeals of Indiana | Memorandum Decision 49A02-1501-PL-61 | August 6, 2015   Page 6 of 9
[10]   Shortly thereafter, GNJ filed a complaint against Sentinel alleging breach of

       contract and bad faith and seeking punitive damages. Sentinel filed a summary

       judgment motion asserting that GNJ was not entitled to coverage on several

       grounds. After a hearing, the trial court summarily granted Sentinel’s motion.

       GNJ now appeals.


                                       Discussion and Decision
[11]   GNJ asserts that the trial court erred in granting Sentinel’s summary judgment

       motion.

               Pursuant to Indiana Trial Rule 56(C), summary judgment is
               appropriate when there are no genuine issues of material fact and
               when the moving party is entitled to judgment as a matter of law.
               When reviewing a decision to grant summary judgment, we apply the
               same standard as the trial court. We must determine whether there is
               a genuine issue of material fact requiring trial, and whether the moving
               party is entitled to judgment as a matter of law. Neither the trial court
               nor the reviewing court may look beyond the evidence specifically
               designated to the trial court. A party seeking summary judgment has
               the burden of making a prima facie showing that there are no genuine
               issues of material fact and that the party is entitled to judgment as a
               matter of law. Once the moving party satisfies this burden through
               evidence designated to the trial court pursuant to Trial Rule 56, the
               non-moving party may not rest on its pleadings, but must designate
               specific facts demonstrating the existence of a genuine issue for trial.
       Gentry v. Day, 22 N.E.3d 710, 713 (Ind. Ct. App. 2014) (citations and quotation

       marks omitted).


[12]   “A genuine issue of material fact exists when the facts relevant to an issue that

       would dispose of the litigation are disputed or where undisputed material facts

       could support conflicting inferences on a dispositive issue.” Frontz v. Middletown

       Court of Appeals of Indiana | Memorandum Decision 49A02-1501-PL-61 | August 6, 2015   Page 7 of 9
       Enters., Inc., 15 N.E.3d 666, 668 (Ind. Ct. App. 2014), trans. denied (2015). “We

       construe all facts and reasonable inferences drawn from those facts in a light

       most favorable to the nonmoving party.” Kelly v. Hamilton, 816 N.E.2d 1188,

       1191 (Ind. Ct. App. 2004). “The interpretation of an insurance policy is

       primarily a question of law and, therefore, is a question particularly suited for

       summary judgment.” Hammerstone v. Ind. Ins. Co., 986 N.E.2d 841, 846 (Ind.

       Ct. App. 2013). “Where terms are unambiguous, they should be given their

       plain and ordinary meaning.” Id. On appeal, the nonmoving party has the

       burden of proving that the grant of summary judgment was erroneous, but we

       review the trial court’s decision carefully to ensure that the nonmovant was not

       improperly denied its day in court. Id. We may affirm summary judgment if it

       is proper on any basis shown in the record. Weist v. Dawn, 2 N.E.3d 65, 67

       (Ind. Ct. App. 2014).


[13]   GNJ contends that the falling of the ceiling tiles constitutes a “collapse” and

       therefore triggers coverage under the policy. GNJ essentially concedes that the

       only basis for coverage would be a collapse caused by decay. Sentinel raises

       several counterarguments, only one of which we address: assuming that a

       collapse occurred, is there a genuine issue of material fact regarding whether it

       was caused by decay? We think not.


[14]   In support of its summary judgment motion, Sentinel designated Kinsey’s

       report and an affidavit in which he opined that “[t]he cause of the ceiling tiles

       falling down … was due to the outward movement of the roof-ceiling structure

       due to the defectively designed trusses[.]” Appellee’s App. at 4. In other

       Court of Appeals of Indiana | Memorandum Decision 49A02-1501-PL-61 | August 6, 2015   Page 8 of 9
       words, Sentinel made a prima facie showing that the collapse was not caused by

       decay and therefore was not covered under the policy. In response to Sentinel’s

       summary judgment motion, GNJ designated Kinsey’s deposition, in which he

       acknowledged that “the bolt design, the additional weight of the shingles, and

       the age of the actual truss members” were the three factors “first and foremost”

       in his mind “that would have contributed to [the] movement of the roof

       structure[.]” Appellant’s App. at 239. Nowhere, however, did Kinsey equate

       age with decay or opine that the collapse was caused by decay. In other words,

       GNJ failed to establish a genuine issue of material fact regarding the cause of

       the collapse. 1 Therefore, we affirm the trial court’s grant of summary judgment

       in Sentinel’s favor.


[15]   Affirmed.


       Brown, J., and Pyle, J., concur.




       1
        To the extent that any designated evidence suggests that the collapse could have been caused in part by
       decay of the roof structure, we note that GNJ’s letter to Master Built indicates that GNJ was aware of such
       decay long before the collapse and therefore would not be entitled to coverage under the policy.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1501-PL-61 | August 6, 2015               Page 9 of 9
