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Messina v. Shelter Insurance Co.

Court of Appeals of Missouri, Western District, First Division

October 8, 2019

DOMINIC MESSINA, Appellant,
v.
SHELTER INSURANCE COMPANY, Respondent.

          Appeal from the Circuit Court of Jackson County. The Honorable Mary F. Weir, Judge

          Before: Cynthia L. Martin, P.J. and Alok Ahuja and Anthony Rex Gabbert, JJ.

          ALOK AHUJA, JUDGE.

         Dominic Messina insured his home with Shelter Mutual Insurance Company. The brick veneer on an exterior wall of Messina's home collapsed, and he filed a property damage claim with Shelter. After Shelter denied the claim, Messina sued the insurer for breach of contract in the Circuit Court of Jackson County. The circuit court granted Shelter's motion for summary judgment, and Messina appeals. Messina has conceded that one of the causes of the wall collapse was explicitly excluded from coverage under Shelter's policy. Because the policy specifies that it does not provide coverage if any cause of loss or damage is excluded, Messina's concession forecloses coverage for the wall collapse. We accordingly affirm the circuit court's grant of summary judgment to Shelter.

         Factual Background

         Messina has owned and lived at the residence located at 501 Olive Street in Kansas City since approximately 1999. Messina acknowledged that the brick veneer on the south side of his home "was bulging out away from the wall . . . since he bought the house."

         In 2016, Shelter issued a homeowner's insurance policy covering Messina's residence for the policy period of May 29, 2016, to May 29, 2017.

         On December 25, 2016, Messina returned home to discover that most of the brick veneer on the south side of his residence had collapsed into his driveway. A few weeks later, Messina contacted Mark Towner, a professional engineer, to determine the cause of the collapse. At his deposition, Towner testified he found pre-existing weakness and deterioration in the mortar of the south wall, which had developed over a period of years. In addition, Towner testified that metal connectors which were intended to hold the brick veneer to the wood sheathing behind it had corroded and rusted. Towner testified that the brick veneer wall collapsed as a result of a combination of factors, including: deterioration of the mortar; corrosion and rust of the metal nails holding the brick veneer to the wood sheathing; and the force of a wind suction or wind velocity event which occurred on the day of the collapse. Towner conceded that, but for the long-term deterioration of the mortar, and the corrosion or rusting of the metal connectors, the wind would not have caused the brick veneer to collapse on its own.

         After Messina filed a claim for loss, Shelter hired its own engineer, Kevin Kirchmer, to inspect the collapsed wall. In his report, Kirchmer attributed the collapse of the brick veneer to long-term expansion and contraction of the wood sheathing, long-term corrosion of the brick nails, and a lack of maintenance. Kirchmer specifically concluded that the wall did not collapse because of the force of the wind.

         Shelter denied Messina's insurance claim. He then filed a breach of contract action against Shelter, seeking to recover the cost of the repair and replacement of the brick veneer. Messina alleged that the policy provided coverage because a wind event caused the collapse, and was a covered cause of loss.

         Shelter moved for summary judgment on the basis that the uncontroverted facts showed that Messina's claim did not involve an "accidental direct physical loss" covered by the policy, because the deterioration and bowing of the brick veneer had not occurred abruptly. Shelter also contended that, even if the loss fell within the definition of an "accidental direct physical loss," coverage was defeated by the policy's exclusions.

         The circuit court granted Shelter's motion for summary judgment. Messina appeals.

         Standard of Review

         "Summary judgment shall be entered if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Wilmes v. Consumers Oil Co. of Maryville, 473 S.W.3d 705, 714 (Mo. App. W.D. 2015) (citing Rule 74.04(c)(6); internal quotation marks omitted). "This Court reviews a grant of summary judgment de novo." Gall v. Steele, 547 S.W.3d 564, 567 (Mo. 2018) (citing ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. 1993)). On appeal, "[w]e will affirm a grant of summary judgment if the decision is correct under any theory supported by the record developed below and presented on appeal." Medley v. Valentine Redford Commc'ns, Inc., 173 S.W.3d 315, 319 (Mo. App. W.D. 2005) (citation and internal quotation marks omitted). The Court reviews the record "in the light most favorable to ...


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