Although the insured claimed damages to her home was caused by vibrations from nearby construction, the court held she failed to overcome the insurer's expert's opinion that the damage resulted from excluded causes such as wear and tear, cracking and settling. King v. Am Family Ins., 2017 Ohio App. LEXIS 2565 (Ohio Ct. App. June 26, 2017).
The insured had a homeowners policy with American Family. The insured sued American Family, alleging that damage to her home was caused by vibrations caused by construction equipment at a nearby high school. The damage included cracks, leaks and mold.
American Family moved for summary judgment, attaching an affidavit from a structural engineering consulting firm. The report outlined alleged damages, including cracks throughout the house, and opined that the areas of concern had been present and progressing for years. Some damaged areas were discolored and patched. Accordingly, the report concluded that the damages were not caused by vibrations from construction.
In her deposition, the insured admitted that some cracks in her home existed before the school project began but testified that other damage occurred during construction. Her opposition to the summary judgment motion included affidavits from neighbors who also felt the vibrations in their homes. The neighbors further stated that some of the damage to the insured's home had not been there before the school project commenced.
American Family's motion for summary judgment was granted. The court found that the insured did not rebut the expert opinion that the damages were not caused by the vibrations/construction and that the insured's lay witnesses did not opine as to the cause of the damages.
The appellate court affirmed. The insured failed to demonstrate that the cause of the damages she alleged was vibration. American Family's expert, on the other hand, presented evidence that provided detailed descriptions of the likely cause of each item of damage. Testimony that some cracks appeared during the time of the vibration/construction did not refute these conclusions. Under the facts of this case, the expert report supported a conclusion that the terms of the policy excluded coverage, especially given that expert testimony clarified the often complex causes of structural damage.
