Building repairs don't pay off for owner
Law of the Land
July 01, 2009
By Tara-Nicholle Nelson
Inman News®
In 2003, Kristine Hennessy noticed that the stucco on her property, a commercial building, had separated from the building's wall. In 2005, the remaining stucco on the building had virtually no adhesion remaining to the building's concrete walls, except on the 20 percent of the building where the underlying wall was concrete masonry blocks. Hennessy removed and replaced the damaged stucco and filed a claim with the insurance company, Mutual of Enumclaw, which later denied the claim.
In the trial of Hennessy v. Mutual of Enumclaw, a judgment was entered for Hennessy, awarding her more than $98,000 for the costs of removing the stucco and installing a new exterior.
The appeals court affirmed the trial court's judgment, but only up to the $2,469 in damages that was incurred by the 2003 stucco replacement. The terms of Hennessy's insurance policy excluded loss or damage due to collapse except in cases where the owner could prove "(1) a specified condition, such as hidden decay, (2) caused 'collapse' of a building or part of a building, and (3) the collapse resulted in direct physical loss or damage to covered property."
Because the policy itself failed to define what constitutes a "collapse," the court applied the plain, dictionary definitions of the word and found that the stucco descended or dropped involuntarily and under the force of gravity in 2003, and was not required to completely and totally fall down. Accordingly, the 2003 stucco damage was covered under the insurance policy.
However, in 2005, while Hennessy and the insurer agreed that removal and replacement of the remaining stucco on the building was prudent, due to the underlying decay and separation from the building's walls, the stucco had not yet "moved or fallen." Accordingly, Hennessy had presented no evidence to show that the damage was caused by collapse, the appeals court found, and the trial court had erred in awarding the remaining damages.
Tara-Nicholle Nelson is author of "The Savvy Woman's Homebuying Handbook" and "Trillion Dollar Women: Use Your Power to Make Buying and Remodeling Decisions." Ask her a real estate question online or visit her Web site, www.rethinkrealestate.com.
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