SUPERlOR COURT
oFTHE

STATE OF DELAWARE

E. SCOTT BRADLEY SussF_x couNTY couRTHousE
JuDGE l THE ClRCLE, SU|TE 2
GEoRGETowN, DE|_AWARE 19947
TE\_EPHONE (302) 656-5256

October 6, 2016

John A. Sergovic, Jr., Esquire Jeffrey A. Young, Esquire
Sergovic, Carmean, Weidman Young & McNelis
McCartney & Owens 300 South State Street
406 S. Bedford Street, Suite 1 Dover, DE 19901

Georgetown, DE 19947

l\/Ielissa L. Rhoads, Esquire
Jason J. Cummings, Esquire
Tighe & Cottrell, P.A.

704 North King Street, Suite 500
P.O. BoX 1031

Wilmington, DE 19899

RE: Kenneth J. Suter v. State F arm Fire & Casualty C0.
C.A. No: SlSC-06-025ESB

Dear Counsel:

This is my decision on Defendant State Farm Fire & Casualty Co.’s Motion for
Summary Judgment in this breach of contract case involving Plaintiff Kenneth J.
Suter’s insurance claim against State Farm for damages to his basement. Suter owns
a ranch house With a basement located at 34791 Collins Avenue, Rehoboth Beach,
Delaware. Suter has a homeowner’s insurance policy With State Farrn covering the
ranch house. Suter noticed a horizontal crack in the basement Wall on July 4, 2014.

Suter noticed that the horizontal crack had increased in size a few Weeks later on July

17, 2014. It appears that a prior owner of the ranch house had installed a new septic
system in the front yard, changing the topography of the yard and causing water to
drain towards and put pressure on the basement wall. Suter was afraid that his
basement wall would collapse so he paid $24,160.00 to fix it and then filed a claim
for damages under his homeowner’s insurance policy with State Farm. State Farrn
denied Suter’s claim, reasoning that it did not fall within the coverage provided by
the homeowner’s policy and was actually excluded from it. Suter then filed a
complaint in this court against State Farm alleging (1) breach of contract, and (2) bad
faith.
STANDARD OF REVIEW

Summary Judgment is appropriate where there are no genuine issues of
material fact and the moving party is entitled to judgment as a matter of law.l The
moving party must initially demonstrate that there is no genuine issue of material
fact.2 If that burden is met, the burden then shifts to the non-moving party to
demonstrate that an issue of material fact remains in dispute.3 Where the parties have

filed cross motions for summary judgment and have not presented argument to the

 

' Superior Court Civil Rule 56(0).
2 BFZOSka v. OlSOn, 668 A.Zd 1355, 1364 (Del. 1995).

3Ia',

Court that there is an issue of fact material to the disposition of either motion, the
Court shall deem the motions to be the equivalent of a stipulation for decision on the
merits based upon the record submitted with the motions.4 Neither party’s motion
will be granted unless no genuine issue of material fact exists and one of the parties
is entitled to judgment as a matter of law.5 Filing of a cross motion for summary
judgment does not serve as a waiver of the party’s right to assert the existence of a
factual dispute as to the other party’s motion.6
DISCUSSION

Suter argues that his basement wall collapsed and is covered under his
homeowner’s policy, Section 1 - Additional Coverages. Suter’s homeowner’s policy
provides that “The Following Additional Coverages are subject to all the terms,
provisions, exclusions and conditions of this policy.” A collapse is covered and
provides as follows:

Collapse. We insure only for direct physical loss to covered
property involving the sudden, entire collapse of a building or any part

of a building.

Collapse means actually fallen down or fallen into pieces. It does
not include settling, cracking, shrinking, bulging, expansion, sagging or

 

4 Superior Court Civil Rule 56(h).
5 Emmons v. Hartford Underwrz'ters Insurance Co., 697 A.2d 742, 745 (Del. 1997).
6 Um'ted Vanguara’ Funa', Inc. v. Take-Care, Inc., 693 A.2d 1076, 1079 (Del. 1997).

3

bowing.

The collapse must be directly and immediately caused only by one
or more of the following.

a. perils described in SECTION 1 - LOSSES INSURED,
COVERAGE B - PERSONAL PROPERTY. These perils
apply to covered building and personal property for loss
insured by this Additional Coverage;

b. hidden decay of a supporting or weight-bearing structural
member of the building;

c. hidden insect or vermin damage to a structural member of
the building;

d. weight of contents, equipment, animals or people;

e. weight of ice, snow, sleet or rain which collects on a roof;
or

f. use of defective material or methods in the construction

(includes remodeling or renovation) of the building, if the
collapse occurs during the course of the construction of the
building.

Loss to an awning, fence, patio, pavement, swimming pool,
underground pipe, flue, drain, cesspool, septic tank, foundation,
retaining wall, bulkhead, pier, wharf or dock is not included under items
b., c., d., e. and f. unless the loss is the direct and immediate cause of the
collapse ofthe building.

This coverage does not increase the limit applying to the damaged
property.

Thus, for Suter to recover he must show that his basement wall collapsed and
that the collapse was caused by one of the enumerated things. Suter cannot meet
either requirement

more

Collapse, according to the policy, “means actually fallen down or fallen into
pieces.” It does not include “settling, cracking, shrinking, bulging, expansion,
sagging or bowing.”7 Suter’s basement wall did not collapse. It only cracked and
bowed. This is borne out by the pictures8 of the basement wall and testimony of
Suter’s two expert witnesses, George Smith and William Baughman. The following
is their testimony on this issue:

William Baughman
Baughman is the owner of Premier Restoration.9 He went to the property the

same day Suter reported the loss to State Farm.

Q. Okay. So tell me, you just kind of described, what did the
basement wall look like?

A. About the center of it was - - it was a cinderblock, and about the
center, if I recall, the mortar joints were cracked horizontally
across the wall, almost the length of the wall, the basement, and

 

7 I did not find State Farm’s definition of collapse to be ambiguous
8 See attachment numbers 1, 2, 3 and 4.
9 Premier Restoration is a fire, smoke, and water damage restoration company.

5

was bellied in, corning from the outside into the living area.
When you say bellied in, do you mean like bulging in?
Bulging in.

And what work did you perform for Mr. Suter?

.>@.>@

We framed up approximately three foot in from the wall, if I recall, with
two-by sixes, I believe they were added to support the first floor just in
case the wall did collapse (Emphasis added).‘0

G_@QL§M
Smith is an engineer. He went to the property in September 2014, two months
after Suter reported the loss to State Farm.

Q. When you had entered Mr. Suter’s basement, had the basement wall
collapsed?

A. No` it wasn’t - ~ had not been eol|apsed; it was lust pushed in and
separated by an inch or two.

When you say pushed in, would you described that as bulging in?

A. l would say you could say it had bulged in; it Was pushed in enough to
open up a crack. (Emphasis added).ll

[---l

Q. Correct me if I’m wrong, I believe you said this earlier, you said the
reason for the damage was pressure on the wall?

 

'0 Plaintiffs Ex. 3 at 10-11.

" Plaintiff’s Ex. 4 at 25.

A. Uh-huh.

Q. Where the concrete bricks decayed in any way?

A. M. (Emphasis added).'2

The two pictures show a basement wall that has only cracked. These pictures,
combined with the testimony of Baughman and Smith, make it clear that the basement
wall did not collapse.

Collapse Causation

Suter argues that his basement wall collapsed because of hidden decay.
However, he does not identify what decayed. Collapse caused by hidden decay of a
weight-bearing structural member of the ranch house is covered under the
homeowner’s insurance policy, but Suter has offered no evidence that such a thing
occurred. Quite simply, it appears that the basement wall cracked because of the
pressure of the water against it.

State Farm argues that Suter’s loss is not covered by his homeowner’s policy.
The policy excludes the following applicable losses:

Section 1 - Losses Not Insured
1.c. freezing, thawing, pressure or weight of water or ice,

whether driven by wind or not, to a swimming pool, hot tub
or spa, including their filtration and circulation systems,

 

'2 Plaintiff`s Ex. 4 at 30.

fence, pavement, patio, foundation, retaining wall,
bulkhead, pier, wharf or dock;

Section l - Losses Not Insured
1.l. settling, cracking, shrinking, bulging, or expansion of
pavements, patios, foundation, walls, floors, roofs or
ceilings;
Section 1 - Losses Not Insured

2.c. Water Damage, meaning:
(1) flood, surface water, waves, tidal water, tsunami,

seiche, overflow of a body of water, or spray from
any of these, all whether driven by wind or not;

>l<>l<>l<>|<>|<>l<

(3) water below the surface of the ground, including
water which exerts pressure on, or seeps or leaks
through a building, sidewalk, driveway, foundation,
swimming pool or other structure.

Suter’s basement wall was cracking and bulging. That is excluded under
Section 1 - Losses Not Insured 1.l. The only evidence in the record is that water
pressure on the basement wall caused it to crack and bulge. That is excluded under
Section 1 - Losses Not Insured 1.c. and l.l.

CONCLUSION

Unfortunately for Suter, the problem that he experienced is simply not covered

by his homeowner’s insurance policy. Since it is not covered, State Farm’s denial of
his claim could not have been in bad faith. Therefore, I have granted Defendant State

Farm Fire & Casualty Co.’s Motion for Summary Judgment.

IT IS SO ORDERED.
Very truly yours,
E. Scott Bradley
ESB/sal

cc: Prothonotary

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ATTACHMENT 4

 

