The insurer's effort to dismiss the insured's collapse case by motion for summary judgment failed. Bitters v. Nationwide Gen. Ins. Co., 2021 U.S. Dist. LEXIS 228523 (E.D. Pa. Nov. 30, 2021).      The insured alleged that there was a "sudden and accidental direct physical loss" to his home caused by collapse due to hidden insect damage to the foundation. The insured came home to find the floor of a bedroom dropped down to the cement slab below. He filed a claim with Nationwide, but coverage was denied. Suit was filed and Nationwide moved for summary judgment.      The policy provided coverage for a sudden and accidental collapse caused by hidden insect damage. A building or part of a building was not considered in the state of collapse if it was standing, even if it was in danger of falling low or caving in.      The court first found that that Nationwide had the burden of proof. The collapse provisions were in a grant of coverage under the Additional Property Coverage Section of the policy but limited by exclusions, rather than exceptions to exclusions. Because Nationwide sought to disclaim coverage based on a policy exclusion, it bore the burden of proving the applicability of the exclusion as an affirmative defense.    The court then found disputes of material facts from which a juror could find for the insured. First, the parties disputed the amount that the floor dropped during the incident. Whether the floor fell a few inches or all the way to the floor remained a genuine dispute of material fact. The dispute as to the height of the drop was material because the insured alleged the "falling down" of a part of a building structure while Nationwide maintained that it merely settled. The policy was unambiguous in that it specifically provided that collapse need not have involved the entire property and could instead be just a "part of a building."     Further, the parties disputed the cause of the collapse. The insureds' experts attributed the cause of the collapse to insect damage. Nationwide's experts attributed the loss to insect and water intrusion damage. This created another issue of genuine fact, which meant Nationwide's motion was denied. 

from Insurance Law Hawaii https://ift.tt/3JAlv5B