Temperature Service Company Inc. et al v. Acuity
Filing
63
MEMORANDUM Opinion and Order: The Court grants Acuity's motion for summary judgment based on its finding that the earth movement exclusion bars coverage 43 , which moots Acuity's further argument for partial summary judgment as to damages. The Court denies plaintiffs' cross-motion for partial summary judgment 47 . Civil case terminated. Signed by the Honorable Thomas M. Durkin on 3/15/2018:Mailed notice(srn, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TEMPERATURE SERVICE COMPANY, INC.
and SVV PARTNERS, LLC,
)
)
)
)
)
)
)
)
)
)
Plaintiffs,
v.
ACUITY, a Mutual Insurance Company,
Defendant.
No. 16 C 2271
Judge Thomas M. Durkin
MEMORANDUM OPINION & ORDER
In this lawsuit, plaintiffs Temperature Service Company, Inc. and SVV
Partners, LLC challenge defendant Acuity’s denial of insurance coverage for
damage to plaintiffs’ building. Acuity moves for summary judgment (R. 43), arguing
that an “earth movement” exclusion in plaintiffs’ insurance policy bars coverage for
their loss, and alternatively, that Acuity is entitled to judgment as a matter of law
as to certain damages. Plaintiffs cross-move for partial summary judgment (R. 47),
arguing that the “earth movement” exclusion does not bar coverage. For the reasons
explained below, the Court grants Acuity’s motion and denies plaintiffs’ motion.
Background
A.
Policy Insuring Plaintiffs’ Property
Acuity has insured plaintiffs’ commercial property in Elk Grove, Illinois since
January 1, 2010. R. 52 (Acuity’s R. 56.1 Response) ¶¶ 1-2; R. 54 (Pls.’ R. 56.1
1
Response) ¶ 4. Acuity issued plaintiffs what is called an “all risk” policy1 covering
“direct physical loss or damage to Covered Property at the premises described in the
Declarations caused by or resulting from any Covered Cause of Loss.” R. 52 ¶ 5.
The policy contains a limitation regarding damage to a building’s foundation,
which states:
Covered Property does not include: . . .
g.
Foundations of building, structures, machinery or broilers if their
foundation are below:
(1)
The lowest basement floor; or
(2)
The surface of the ground, if there is no basement.
R. 54 ¶ 5.
The policy also contains an “Earth Movement” exclusion providing:
B.
EXCLUSIONS
1.
We will not pay for loss or damage caused directly or indirectly by any
of the following. Such loss or damage is excluded regardless of any other
cause or event that contributes concurrently or in any sequence to the loss.
...
b.
Earth Movement
...
(4)
Earth sinking (other than sinkhole collapse), rising, or
shifting including soil conditions which cause settling,
cracking, or other disarrangement of foundations or other
parts of realty. Soil Conditions include contraction,
expansion, freezing, thawing, erosion, improperly
compacted soil and the action of water underlying the
ground surface.
R. 52 ¶ 6; R. 54 ¶ 5.
An “all risk” policy “creates a special type of coverage extending to risks not
usually covered under other insurance, and recovery under an ‘all risk’ policy will,
as a rule, be allowed for all fortuitous losses not resulting from misconduct or fraud,
unless the policy contains a specific provision expressly excluding the loss from
coverage.” Cincinnati Ins. Co. v. Am. Hardware Mfrs. Ass’n, 387 Ill. App. 3d 85, 109,
898 N.E.2d 215, 237 (1st Dist. 2008).
1
2
B.
Damage to Plaintiffs’ Property
In 2013, plaintiffs excavated around their property to construct a detached
storage addition. R. 52 ¶ 15; R. 54 ¶ 7. During the excavation process, plaintiffs
discovered that the soil around the property contained “urban backfill,” or manmade
debris, such as concrete and asphalt. R. 52 ¶ 16; R. 54 ¶ 7. Plaintiffs retained a
consultant to investigate this issue, and the consultant in turn hired Soil and
Material Consultants (“SMC”) to perform a geotechnical investigation. R. 52 ¶¶ 1718. This investigation involved taking eight soil samples from the ground around
the property at various depths. R. 52 ¶ 19; R. 54 ¶¶ 12-14.
Following the geotechnical investigation, an expert soil engineering
consultant from SMC produced a report on which plaintiffs rely in this case. R. 52
¶¶ 26-29. Acuity hired its own expert consultant to analyze the same core samples
taken by SMC. R. 52 ¶¶ 33-36; R. 54 ¶¶ 21, 28.
The parties’ experts agree on several key facts. They agree that the core
samples contained a combination of soil naturally present and “fill soil,” which is
non-synthetic soil transported from a different location to level the height of the
bottom of the building. R. 52 ¶¶ 24-25, 30; R. 54 ¶ 23. They agree that the building’s
foundation, drywall, doorframes, and windows are cracked and otherwise damaged.
R. 52 ¶¶ 42, 44; R. 54 ¶ 8. And they agree that the presence of fill soil was a cause of
the property damage. R. 52 ¶¶ 27, 41; R. 54 ¶¶ 24-26, 28.
Plaintiffs’ expert specifically opined that “high moisture content/low-strength
fill and natural soil conditions supporting the foundations are the cause of excessive
3
building settlement.” R. 52 ¶ 29; R. 54 ¶ 24. He further opined “as to two likely
causes of the settlement exhibited by the ‘fill’ soils: a. Additional load that ‘pushes
down’ on the soil; and b. Consolidation due to improper compaction.” R. 54 ¶ 26.
Acuity’s expert specifically opined in his report that the most likely cause of
damage was “differential soil settlement” “caused by a combination of building loads
and non-uniform soil conditions and [ ] activated by localized concentrations of
moisture from precipitation seeping into the ground.” R. 52 ¶ 37; R. 54 ¶ 28. He
testified at his deposition that the cause of the differential soil settlement was
variability among the natural and fill soils. R. 54 ¶ 28. Acuity’s expert further
explained that “[t]he soil suction from tree roots during periods of drought may have
also caused some of this damage.” R. 52 ¶ 37; R. 59 (Pl.’s Resp. Additional Facts)
¶ 1. And although the core samples did not contain any “urban backfill,” R. 52 ¶ 21;
R. 54 ¶ 16, Acuity’s expert could not rule out the possibility that urban backfill
existed under the property. R. 52 ¶¶ 37, 48; R. 59 ¶ 1. Based on its expert’s analysis,
Acuity denied coverage. R. 54 ¶ 6.
C.
The Current Lawsuit
Plaintiffs first sued Acuity in Illinois state court challenging Acuity’s denial
of coverage. Acuity removed the case to federal court based on diversity jurisdiction.
R. 1; see also R. 54 ¶¶ 1-3 (plaintiffs are Illinois companies and Acuity is a
Wisconsin company); R. 1-2 (sworn proof of $734,779 loss). Plaintiffs’ two-count
complaint seeks a declaratory judgment regarding coverage (Count I) and alleges
breach of contract (Count II). R. 1-1.
4
Before discovery closed, Acuity moved for summary judgment based on a
policy provision insuring plaintiffs against “loss or damage commencing during the
policy period.” R. 29 ¶ 5. Acuity argued that plaintiffs could not establish that the
loss “commenc[ed]” during the policy period. The Court rejected that argument,
finding the term “commencing” ambiguous and finding a question of fact as to
whether any of the damage “commenced” during the policy period. R. 34.
Discovery has now closed, and the parties have cross-moved for summary
judgment on the issue of whether the policy’s earth movement exclusion bars
coverage for plaintiffs’ loss. In addition, Acuity moves for partial summary
judgment with respect to certain damages under the policy’s foundation limitation.
Standard
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). The Court considers the entire evidentiary record and must view all
of the evidence and draw all reasonable inferences from that evidence in the light
most favorable to the nonmovant. Ball v. Kotter, 723 F.3d 813, 821 (7th Cir. 2013).
To defeat summary judgment, a nonmovant must produce more than “a mere
scintilla of evidence” and come forward with “specific facts showing that there is a
genuine issue for trial.” Harris N.A. v. Hershey, 711 F.3d 794, 798 (7th Cir. 2013).
Ultimately, summary judgment is warranted only if a reasonable jury could not
5
return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986).
Where the parties file cross-motions for summary judgment, the Court
applies this standard to each motion separately to determine whether there is a
genuine dispute of material fact and whether judgment should be entered as a
matter of law. Marcatante v. City of Chicago, 657 F.3d 433, 438-39 (7th Cir. 2011).
In ruling on each cross-motion for summary judgment, the Court draws inferences
in favor of the party against whom the motion under consideration is made. Siliven
v. Ind. Dep’t of Child Servs., 635 F.3d 921, 925 (7th Cir. 2011).
Analysis
I.
Earth Movement Exclusion
The parties cross-move for summary judgment on the issue of whether the
earth movement exclusion in plaintiffs’ insurance policy bars coverage for their loss.
When a federal court exercises diversity jurisdiction, the “ultimate responsibility of
the district court is to apply the law of the state in which the court sits with respect
to substantive matters.” Allstate Ins. Co. v. Menards, Inc., 285 F.3d 630, 633 (7th
Cir. 2002). Therefore, as both parties agree, this Court applies Illinois law to
interpret plaintiffs’ insurance policy.
Under Illinois law, the interpretation of an insurance policy is a question of
law properly decided on summary judgment. BASF AG v. Great Am. Assur. Co., 522
F.3d 813, 818-19 (7th Cir. 2008). “A court’s primary objective in construing the
language of an insurance policy is to ascertain and give effect to the intentions of
6
the parties as expressed by the language of the policy.” Id. at 819. “It is the insurer’s
burden to affirmatively demonstrate the applicability of an exclusion.” Pekin Ins.
Co. v. Miller, 367 Ill. App. 3d 263, 267, 854 N.E.2d 693, 697 (1st Dist. 2006).
“Exclusion provisions that limit or exclude coverage must be construed liberally in
favor of the insured and against the insurer.” Id. But “[w]here the terms of an
insurance policy are clear and unambiguous, they must be applied as written,” and
“a court will not search for ambiguity where there is none.” BASF, 522 F.3d at 819.
The earth movement exclusion provides that Acuity will not pay for damage
“caused directly or indirectly by any of the following[:] . . . soil conditions which
cause settling, cracking or other disarrangement of foundations or other parts of
realty.” R. 52 ¶ 6. The parties’ experts agree on several key facts relevant to this
exclusion. They agree that conditions in the soil are a cause of the damage. R. 52
¶ 29 (plaintiffs’ expert opined that “high moisture content/low-strength fill and
natural soil conditions supporting the foundations are the cause of the excessive
building settlement”); R. 52 ¶ 37 (Acuity’s expert opined that “a combination of
building loads and non-uniform soil conditions and activated by localized
concentrations of moisture” caused “differential soil settlement”). They specifically
agree that the presence of fill soil is a cause of the damage. R. 52 ¶¶ 27, 41; R. 54 ¶¶
24-26, 28. And they agree that these conditions resulted in “settlement,” R. 52 ¶ 29;
R. 52 ¶ 37, as well as cracking of the foundation and other parts of the property. R.
52 ¶¶ 42, 44; R. 54 ¶ 8. These facts alone seem to fit plaintiffs’ damage within the
plain language of the earth movement exclusion. See R. 52 ¶ 6 (“soil conditions
7
which cause settling, cracking or other disarrangement of foundations or other
parts of realty”).
Plaintiffs nevertheless contend that the exclusion does not apply for two
reasons. First, they say the exclusion does not apply to soil conditions resulting
from human action. Second, they say that the exclusion does not apply because
there are several possible causes of loss, and not all of those causes are specifically
excluded. The Court addresses each argument in turn.
A.
Human Action
Acuity does not contest, for purposes of its motion, that “human action (the
placement of fill soil on the site)” was “a cause of damage in this case.” R. 44 at 4.
The central disagreement among the parties is thus a question of law: whether the
undisputed involvement of human action in creating the soil conditions at issue
means that the earth movement exclusion does not apply. In support of their
position, plaintiffs rely primarily on Mattis v. State Farm Fire & Cas. Co., 118 Ill.
App. 3d 612, 454 N.E.2d 1156 (5th Dist. 1983), and Nautilus Ins. Co. v. Vuk
Builders, Inc., 406 F. Supp. 2d 899 (N.D. Ill. 2005). In both cases, the courts
analyzed earth movement exclusions and found them ambiguous. But the
exclusions in Mattis and Vuk differed significantly from the exclusion in this case.
The policy in Mattis excluded “earth movement, including but not limited to
earthquake, volcanic eruption, landslide, mudflow, earth sinking, rising or shifting.”
454 N.E.2d at 1160. The Mattis court applied the principle of ejusdem generis “to
limit the definition of ‘earth movement’ to causes of the same class as earthquake
8
and landslide.” Id. It found that “settlement and consolidation of . . . backfill
material” did not fall into the same class as earthquakes and landslides, and
therefore determined “that the earth movement clause does not provide a basis for
denial of coverage.” Id.
The policy in Vuk similarly excluded “earth movement, including but not
limited to landslide, mud flow, earth sinking, rising or shifting.” 406 F. Supp. 2d at
902. Relying on Mattis, the Vuk court found this exclusion ambiguous in that it
“define[d] the type of earth movement, not the cause,” and all of its examples “could
be construed to exclude coverage for natural causes” or “could be construed to
exclude coverage for man-made events.” Id. at 904. The court resolved the
ambiguity against the insurer and found that “earth movement due to man-made
causes alleged in the underlying suits—negligence in excavating and bracing the
property—is not included in the exclusion.” Id. at 904-05.
Crucially, however, the earth movement exclusions in Mattis and Vuk did not
list any events unambiguously caused by human action as examples of “earth
movement.” See Mattis, 454 N.E.2d at 1160 (“earthquake, volcanic eruption,
landslide, mudflow, earth sinking, rising or shifting”); Vuk, 406 F. Supp. 2d at 902
(“landslide, mud flow, earth sinking, rising or shifting”). The policy in this case, by
contrast, specifically refers to “Soil Conditions” as earth movement, and it lists an
event unambiguously caused by human action as an example of “Soil Conditions.”
Namely, it defines “Soil Conditions” to “include contraction, expansion, freezing,
9
thawing, erosion, improperly compacted soil and the action of water underlying the
ground surface.” R. 52 ¶ 6 (emphasis added).
As other courts have found, “improperly compacted soil” necessarily
implicates human action. See Mulhern v. Philadelphia Indem. Ins. Co., 802 F. Supp.
2d 317, 322 (D. Mass. 2011) (“‘[I]mproperly compacted soil’ is clearly a manmade
condition.”); Ruede v. City of Florence, 231 Or. App. 435, 442, 220 P.3d 113, 117
(2009) (“improperly compacted soil” is a “human-created cause”). Interpreting earth
movement exclusions identical to the one in this case, both the Mulhern and Ruede
courts found that they unambiguously covered soil conditions caused by human
action. See Mulhern, 802 F. Supp. 2d at 322-23 (rejecting argument that “‘Earth
Movements’ exclusion should be read to bar only coverage of naturally occurring
earth movements and not man-made events” because “‘[i]mproperly compacted soil’
is clearly a manmade condition, which the plain language of the Policy excludes
from coverage,” and “[t]herefore, the Policy is not ambiguous in this respect”);
Ruede, 220 P.3d at 117 (rejecting argument that “the exclusion may fairly be read to
apply only to earth movement caused by natural events, and not to human-caused
earth movement, such as the culvert defect that caused the sifting of sand under the
slab in this case,” because it could not “be squared with the text of the exclusion,
which lists at least one human-created cause—‘improperly compacted soil’—among
the excluded ‘soil conditions’”). This Court finds these courts’ reasoning persuasive.
Plaintiffs contend that “improperly compacted soil” does not necessarily
implicate human action. They say that because the other “Soil Conditions” examples
10
do not implicate human action, “it must also necessarily follow under the principle
of ejusdem generis that ‘improperly compacted soil’ as referenced in Acuity’s
exclusion must also be a naturally occurring cause of loss.” R. 56 at 5. But this is an
improper application of ejusdem generis. The ejusdem generis principle provides:
“When a statute lists several classes of persons or things but provides that the list
is not exhaustive, the class of unarticulated persons or things will be interpreted as
. . . ‘others such like’ the named persons or things.” City of Chicago v. Elm State
Property LLC, 2016 IL App (1st) 152552, ¶ 23, 69 N.E.2d 390, 397. As Acuity
correctly explains, plaintiffs’ argument attempts to use ejusdem generis to limit or
change the meaning of a condition expressly listed (“improperly compacted soil”)—
not to interpret “the class of unarticulated persons or things” (id.). The ejusdem
generis principle does not allow this Court to change the meaning of a condition
expressly listed so it matches the other conditions expressly listed.
Rather, as long as “‘the terms of an insurance policy are clear and
unambiguous, they must be given their plain and ordinary meaning and enforced as
written, unless to do so would violate public policy.’” Berg v. New York Life Ins. Co.,
831 F.3d 426, 429 (7th Cir. 2016) (quoting DeSaga v. W. Bend Mut. Ins. Co., 391 Ill.
App. 3d 1062, 331, 910 N.E.2d 159, 163 (3d Dist. 2009)). And the term “improperly
compacted soil” is plain and unambiguous—it requires human action.2 Naturally
The Seventh Circuit further made clear in Berg that under Illinois law, “[i]n
determining whether a provision is ambiguous, we read the policy in light of ‘the
insured’s reasonable expectations and the policy’s intended coverage.’” 831 F.3d at
429 (quoting Gen. Star Indemn. Co. v. Lake Bluff Sch. Dist. No. 65, 354 Ill. App. 3d
118, 819 N.E.2d 784, 793 (2d Dist. 2004)). Plaintiffs say they had a reasonable
2
11
occurring conditions cannot logically be described as “proper” or “improper”—they
simply happen or exist. Unlike the exclusions in Mattis and Vuk, the earth
movement exclusion in plaintiffs’ policy thus unambiguously includes both
naturally occurring soil conditions and soil conditions resulting from human action.
Applying the principle of ejusdem generis in its intended manner, the Court
finds that a condition that is an undisputed cause of the damage in this case—the
presence of fill soil—is “of the same class” (Mattis, 454 N.E.2d at 1160) as the listed
examples of soil conditions despite the involvement of human action in moving the
fill soil to its current location. The conclusion that the presence of fill soil is of the
same class as “improperly compacted soil” is further supported by an admission of
plaintiffs. Plaintiffs admit that according to their expert, a “likely cause[ ] of the
settlement exhibited by the ‘fill’ soils” was “[c]onsolidation due to improper
compaction.” R. 54 ¶ 26. Thus, plaintiffs’ own expert has opined that a listed
condition—improperly compacted soil—was a “likely cause[ ] of the settlement
exhibited.” Id. At the very least, this admission supports that the presence of fill soil
expectation of broad coverage in light of the “all risk” policy they purchased, and
that this expectation should be accounted for in determining whether the earth
movement exclusion is ambiguous. But again, an “all risk” policy covers “all
fortuitous losses . . . unless the policy contains a specific provision expressly
excluding the loss from coverage.” Cincinnati Ins. Co., 898 N.E.2d at 237 (emphasis
added). The policy here unambiguously excludes damage resulting from earth
movement including soil conditions—whether naturally occurring or resulting from
human action. The Berg court made clear that “[a] court should not ‘strain to find
an ambiguity where none exists.’” 831 F.3d at 429 (quoting Founders Ins. Co. v.
Munoz, 237 Ill.2d 424, 433, 930 N.E.2d 999, 1004 (2010)). The unambiguous terms
of plaintiffs’ policy “must be enforced as written,” and the Court cannot “rewrite a
contract to provide a better bargain to suit one of the parties.” Barille v. Sears
Roebuck & Co., 289 Ill. App. 3d 171, 175, 682 N.E.2d 118, 122 (1st Dist. 2004).
12
falls within the same class as the listed conditions. Compare High St. Lofts Condo.
Ass’n v. Am. Family Mut. Ins. Co., 821 F. Supp. 2d 1235, 1243 (D. Colo. 2011)
(finding fact issue for jury as to whether the building’s failure to properly absorb
vibration from nearby construction work was due to improperly compacted soil).
In sum, the Court finds that the earth movement exclusion in plaintiffs’
policy unambiguously includes soil conditions resulting from human action. And the
Court finds that the presence of fill soil resulting from human action—an
undisputed cause of damage in this case—falls within the same class as listed soil
conditions excluded under the policy.
B.
Other Causes
Plaintiffs further rely on Mattis for the proposition that if any non-excluded
cause contributed to their loss—a possibility they claim Acuity has not eliminated—
then Acuity cannot meet its burden. A second, alternative basis for the Mattis
court’s holding that the earth movement exclusion did not apply was the fact that a
non-excluded cause—“defective design and construction”—undisputedly contributed
to the loss in that case. 454 N.E.2d at 1160-61. The Mattis court explained that
“[w]here a policy expressly insured against loss caused by one risk but excludes loss
caused by another risk, coverage is extended to a loss caused by the insured risk
even though the excluded risk is a contributory cause.” Id. at 1161.
Plaintiffs claim that here, as in Mattis, “there are multiple potential causes of
loss”—“one that occurs naturally and one that is a result of non-natural activities,
i.e., the placement of fill soil and the failure to properly compact the fill soil.” R. 49
13
at 7. Plaintiffs say that because “man-made causes of loss are not expressly
excluded causes of loss under the Acuity ‘Earth Movement’ exclusion, the exclusion
does not provide a basis for denial of coverage.” Id. But this Court has already found
that both “placement of fill soil” and “the failure to properly compact the fill soil” fall
within the exclusion, regardless of whether the failure to properly compact the soil
is a manmade cause. Plaintiffs and their expert have not identified any nonexcluded cause of loss in this case as there was in Mattis.
And even if other causes did contribute to plaintiffs’ loss—such as the
building loads and tree roots identified by Acuity’s expert, or the possibility of urban
backfill under the building that Acuity’s expert could not rule out—there is a crucial
difference between the causation language in Acuity’s policy and the policy in
Mattis. Unlike the policy in Mattis, Acuity’s policy contains what is called an
anticoncurrent causation clause that applies to the earth movement exclusion. That
clause states: “We will not pay for loss or damage caused directly or indirectly by
any of the following. Such loss or damage is excluded regardless of any other cause
or event that contributes concurrently or in any sequence to the loss.” R. 52 ¶ 6.
The Illinois appellate court in Bozek v. Erie Ins. Group, 2015 IL App (2d)
150155, ¶ 34, 46 N.E.2d 362, 333, recently held as a matter of first impression that
an anticoncurrent causation clause nearly identical to this one precludes coverage
when both a covered and an excluded cause combine to cause damage. See also id.
at 325 (analyzing clause providing: “We do not pay for loss resulting directly or
14
indirectly from any of the following, even if other events or happenings contributed
concurrently, or in sequence to, the loss.”). The Bozek court explained:
On the extreme of specifying narrow coverage, many policies include
anticoncurrent-causation clauses. The purpose of anticoncurrentcausation clauses is to avoid application of the general rule [i.e., the
rule expressed in Mattis] that there is coverage so long as the efficient
or dominant cause is covered. When an anticoncurrent-causation
clause can be applied to the facts underlying the claim, there is no
coverage even if one contributing cause is an excluded event.
Id. at 331.
Here, as in Bozek, the only question that matters in light of the
anticoncurrent causation clause is whether an excluded cause was “one contributing
cause” of the loss at issue. And the Court has already found that an excluded cause
(a soil condition qualifying as earth movement) was a contributing cause of
plaintiffs’ loss. Neither party claims—and the undisputed facts do not support—that
any other cause could possibly be the exclusive cause of loss. Compare Mulhern, 802
F. Supp. 2d at 323 (in case involving anticoncurrent causation clause, finding fact
issue for jury on the issue of whether “improperly compacted soil was the cause of
the damage or whether the vibrations emanating from the pile driving were the
exclusive cause”) (emphasis added). Nor do plaintiffs allege “perils act[ing] at
different times, causing different damage, resulting in separate losses.” See Bozek,
46 N.E.2d at 332 (distinguishing this situation as one where an anticoncurrent
causation clause would not bar coverage). The Court therefore finds that Acuity has
met its burden of demonstrating that the earth movement exclusion precludes
coverage of plaintiffs’ loss, regardless of any other potentially contributing causes.
15
II.
Foundation Limitation
Because the Court has found that the earth movement exclusion
unambiguously precludes coverage in this case, it does not reach Acuity’s
alternative argument for partial summary judgment as to the claimed damages for
“cracks in the foundation wall” (R. 1-1 ¶ 17) under the policy’s foundation
limitation.
Conclusion
The Court grants Acuity’s motion for summary judgment based on its finding
that the earth movement exclusion bars coverage (R. 43), which moots Acuity’s
further argument for partial summary judgment as to damages. The Court denies
plaintiffs’ cross-motion for partial summary judgment (R. 47).
ENTERED:
_________________________
Honorable Thomas M. Durkin
United States District Judge
Dated: March 15, 2018
16
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?