While building's first collapse was not covered, there were disputed facts regarding the second collapse, leading to a reversal of the order granting summary judgment to the insurer on both collapses. Intergroup Int'l Ltd. v. Cincinnati Ins. Cos, 2017 Ohio app. LEXIS 5099 (Ohio Ct. App. Nov. 22, 2017).
Intergroup bought a building after it was inspected. While leaks on the roof were repaired and a roof truss that was sagging was replaced, the inspector found the roof to be in good shape.
Over two years later, in 2014, a truss holding up the roof moved overnight and was sagging in place. Intergroup attempted to stabilize the sagging truss by engineering a metal support beam to hold it up. Intergroup also notified its carrier, Cincinnati, and filed a claim. Cincinnati hired Rudick Forensic Engineering to investigate. Eric Hauser, a senior forensic engineer, went to the site and inspected the property. His report stated that two trusses had experienced "differential movement" and Intergroup had installed a steel post to hold up the two compromised trusses. Two employers informed Hauser that it had rained the night before and that water was leaking down through the roof directly above the damaged areas.
Cincinnati denied the claim based on Hauser's conclusion that the damage to the roof truss was not storm related but due to varying degrees of rot and decay. Cincinnati quoted portions of the policy in the denial, including exclusions for wear and tear, and deterioration. A rider to the policy provided coverage for a sudden collapse caused by decay hidden from view. Cincinnati believed that the presence of decay was an open and obvious condition that occurred over a period of time.
In 2015, a large portion of the roof, approximately 4,000 square feet) collapsed inward onto the interior floor of the building. Intergroup filed a second claim with Cincinnati. Hauser was sent to investigate again. When Hauser removed roof fragments, he observed similar rot and decay that had been present during his 2014 inspection. He opined that surface runoff penetrated through openings in the roof membrane, causing leaks that may or may not have damaged the interior. He also felt that the rot present had developed from exposure to moisture over an extended period of time. Cincinnati again denied the claim because Intergroup had been put on notice due to the 2014 truss failure, which occurred in the same general area as the 2015 failure.
Intergroup sued. Intergroup alleged it never noticed decay to the roof. Further, the expert report on the 2014 even was inconclusive about the cause of loss and in many ways confirmed that there was no apparent or visible rot in the roof structure. Intergroup also alleged that the 2015 collapse was the direct result of Cincinnati's failure to provide coverage so that the 2014 damage could be properly addressed.
Cross motions for summary judgment were filed. The trial court ruled in favor of Cincinnati.
On appeal, the court noted that Intergroup had failed to submit any expert report or testimony that would explain how the 2014 storm was causally connected to the resulting loss. Therefore, Intergroup offered only its own assertions that the storm caused the loss. But these assertions did not create a genuine issue of material fact. Hauser's expert opinion asserted there were no patterns of damage or torn portions of the roof that would suggest that the roof had been compromised by exposure to wind. The Hauser report was direct and credible evidence that a storm did not cause the loss. Therefore, the trial court did not err by finding in favor of Cincinnati on Intergroup's clams for breach of contract related to the 2014 claim denial.
Granting summary judgment on the 2015 claim was in error, however. Under the rider to the policy, there were outstanding genuine issues of material fact related to coverage under the collapse provision. Although Intergroup did not submit an expert report, it relied upon the deposition testimony of several employees who testified that prior to the collapse, they never saw rot or decay in the areas of the roof structure that collapsed in 2015. One employee, the maintenance supervisor, was in a position to notice rot and decay because he often repaired areas of the building that needed maintenance. He stated that he did not see rot prior to the 2015 event. Further, whether Intergroup was aware, or should have been aware, of the rot and decay was a question of fact for the jury. And whether the 2014 truss failure caused the 2015 collapse was also a genuine question of material fact. Accordingly, the court erred by granting summary judgment to Cincinnati on Intergroup's 2015 claims.