This case arises out of the collapse of a basement wall of plaintiffs' home. At the close of a trial to the court, the trial court awarded $12,864 for damage to the building, $1,752 for loss of personal property to the plaintiffs jointly, and $1,500 for negligent infliction of emotional distress to plaintiff Judith A. Hawes. The court apportioned causal negligence 50% to the masonry subcontractor who built the basement wall (Trico), and 50% jointly to the city of Muskego (Muskego) and its building inspector (Lee). Plaintiffs' homeowner's insurance company (Germantown Mutual) was ordered to pay the property damage amounts, with indemnification from Trico and Muskego/Lee.
On appeal, Trico and Muskego/Lee challenge the damage awards and the liability apportionment. Germantown Mutual cross-appeals from the trial court's determination of liability arising from its homeowner's policy. We modify that part of the judgment holding Germantown Mutual liable for special damages not covered by its policy, and affirm the balance of the judgment.
STANDARD OF REVIEW
"[T]he standard for reversal is heavily weighted on the side of sustaining trial court findings of fact in cases tried without a jury." Leimert v. McCann, 79 Wis.2d 289, 296, 255 N.W.2d 526, 530 (1977). This is because
[t]he findings of the trial court and its decision must be sustained unless they are against the great weight and clear preponderance of the evidence. To reverse this court must determine that the evidence in support of a contrary finding constitutes the great weight and clear preponderance of the evidence. Ludke v. Egan, 87 Wis.2d 221, 230, 274 N.W.2d 641, 645 (1979). Accord, Fidelity & Deposit Co. v. First National Bank, 98 Wis.2d 474, 484-85, 297 N.W.2d 46, 51 (Ct. App. 1980).
"In negligent torts, mental distress is compensable only when there is an accompanying or resulting physical injury." Scarpaci v. Milwaukee County, 96 Wis.2d 663, 675, 292 N.W.2d 816, 822 (1980). "[E]motional stress must be manifested by physical injuries in actions based on negligence rather than intentional conduct." Ver Hagen v. Gibbons, 47 Wis.2d 220, 227, 177 N.W.2d 83, 86 (1970).
Trico and Muskego/Lee assert that plaintiffs failed to prove that the emotional trauma, suffered by Mrs. Hawes when the wall collapsed at her feet, was manifested by any resulting physical injury.
The requirement of accompanying or resulting physical injury is designed to distinguish valid from fraudulent claims, see Wright v. Hasley, 86 Wis.2d 572, 576, 273 N.W.2d 319, 321 (1979), and to provide some effective means of evaluating a claim of mental injury. See School District No. 1 v. DILHR, 62 Wis.2d 370, 377, 215 N.W.2d 373, 377 (1974).
The record in this case establishes that Mrs. Hawes was in the basement when the wall collapsed inward. While retrieving clothing from the washing machine in the basement
We agree with Trico and Muskego/Lee that Mrs. Hawes' abrasion, alone, is not accompanying injury sufficient to remove an emotional distress claim from the realm of speculation. An eleven-pound weight loss, caused by loss of sleep and appetite, is also, standing alone, arguably insufficient resulting physical damage to distinguish a valid from fraudulent emotional distress claim. In this case, however, the two, coupled with substantial evidence of both Mrs. Hawes' fear for her own safety, see Ver Hagen v. Gibbons, supra, 47 Wis. 2d at 224, 177 N.W.2d at 85 (discussing Waube v. Warrington, 216 Wis. 603, 258 N.W. 497 (1935)), and a direct causal relationship between the emotional distress and the traumatic collapse of the wall, see Redepenning v. Dore, 56 Wis.2d 129, 143, 201 N.W.2d 580, 588 (1972), provide a sufficient basis for the trial court to determine that this was not a fraudulent claim. The trial court's award of $1,500 for negligent infliction of emotional distress in this case was not contrary to law nor the great weight and clear preponderance of the evidence.
Trico and Muskego/Lee, with Germantown Mutual concurring, assert that plaintiffs failed to prove with requisite certainty the amount of damages to miscellaneous personal property stored in the basement. The trial court valued damage to these items at $1,000 of the total $1,752 personal property award. Lloyd Hawes, with help from a friend and his mother, personally inventoried and recorded each item destroyed by the wall collapse. He and his wife testified that what few receipts they had were also destroyed by the collapse. "[W]here the fact of damage is clear and certain, but the amount
The fact of damage to the 107 items listed by plaintiffs is not challenged on appeal, and the five-page, single-spaced list includes furniture, power tools, wool carpeting, major appliances, and clothing. Although plaintiffs' attempts at valuing these items were uncertain, the $1,000 awarded for the miscellaneous personalty is not against the great weight and clear preponderance of the evidence.
Trico and Muskego/Lee, with Germantown Mutual joining, argue that the trial court erred when it allowed as recovery for damage to plaintiffs' home both the cost of repair and diminution in value. They cite the rule of Laska v. Steinpreis, 69 Wis.2d 307, 314, 231 N.W.2d 196, 200 (1975), that where both cost of repair and diminution in value are in evidence, the proper measure is the lesser of the two. The fallacy in their reliance on this rule is that the diminution in value it addresses is "the difference between the reasonable market value of the property immediately before the injury . . . and its reasonable market value immediately after the injury," i.e., before the injury is repaired. Laska, supra, 69 Wis. 2d at 313, 231 N.W.2d at 200. No such evidence was offered in this case, so the cost of repair figure must stand. Id. at 314, 231 N.W.2d at 200.
The diminution in value which the trial court awarded in addition to cost of repair does not fall within the rule of Laska, but is in the nature of special damages. It reflects evidence that the repairs, when made, will not restore the property to its pre-collapse value. There
LIABILITY
The trial court found Muskego/Lee and Trico each 50% causally negligent because the collapsed wall as built violated two provisions of the Municipal Building Code:
The building code requires pilasters where the unsupported length of a foundation wall exceeds thirty times its thickness. As Trico's brief points out, there is no dispute that simple application of this formula to the wall in question requires a pilaster every twenty-five feet. Because it is also undisputed that the wall in question exceeded fifty feet, the trial court was correct in concluding that two pilasters were required.
Muskego/Lee argue that because the building inspector (Lee) has always subtracted the width of pilasters from the "unsupported length" figure, this interpretation of the code is controlling under the rule of Mednis v. Industrial Commission, 27 Wis.2d 439, 444, 134 N.W.2d 416, 419 (1965): "The construction and interpretation adopted by the administrative agency charged with the duty of applying the law is entitled to great weight in the courts." The cases cited by the court as support for
Trico argues that because the building inspector (Lee) testified that he followed the usual and customary procedure in approving the one-pilaster plan, lack of a second pilaster as required by the clear language of the code is not evidence of negligence. Although
[i]t is true that compliance with a customary practice furnishes evidence of due care, . . . [s]uch evidence is received for what it is worth, in view of all the circumstances of the particular case, and under proper instructions from the court as to its inconclusive nature the jury has the right to give it such consideration as they think it should receive in connection with all the other facts. Marolla v. American Family Mutual Insurance Co., 38 Wis.2d 539, 548, 157 N.W.2d 674, 679 (1968).
The trial court, as finder of fact, did not err in finding a code violation despite this evidence of custom.
The collapsed wall was built with solid-top blocks. The code states that "[a]ll masonry foundation walls shall be capped with solid masonry units." Muskego/Lee and Trico argue, again relying on Lee's interpretation and usual and customary application of the code, that this provision is unenforceable because it appears in a footnote, and if enforceable, is satisfied by use of solid-top
Trico argues that this second violation is inconsequential because the evidence establishes that use of solid blocks adds no lateral strength to a wall. The evidence also establishes that the collapse may have been avoided if the superstructure of the house had been attached to the wall, and that solid, as opposed to solid-top, blocks facilitated attachment because fittings could not be placed securely in solid-top blocks. The trial court's finding that this second code violation caused the collapse is
Muskego/Lee contend that the trial court erred in imposing liability on a municipality without considering public policy factors, citing Coffey v. City of Milwaukee, 74 Wis.2d 526, 247 N.W.2d 132 (1976), a case involving "the complex issue of municipal tort liability arising out of the alleged negligence of a building inspector in carrying out fire inspections." Id. at 543, 247 N.W.2d at 141. The court in Coffey concluded that the dispute "involve[d] public policy considerations and require[d] the balancing of various policy factors, in determining whether there is to be liability at all, and, if so, the extent thereof," but that "a full trial should precede this court's determination of the policy considerations." Id. at 543, 247 N.W.2d at 140-41. The court has subsequently indicated that it is the function of the trial court and this court to determine these considerations: "[A] full trial must precede the trial court's and appellate court's determination of the issue as to what liability, if any, attaches . . . ." Ollerman v. O'Rourke Co., 94 Wis.2d 17, 52, 288 N.W.2d 95, 112 (1980).
We begin by noting that the public policy issues are not fully developed by counsel in their briefs. Examination of the full trial transcript and trial court findings convince us, nonetheless, that it is not against public policy to hold Muskego/Lee liable. Liability here does not arise out of routine periodic inspections where the defect causing the injury is possibly concealed or easy to overlook. It arises out of improper application of a building code both when plans were approved for issuance of a building permit and when final construction was approved for issuance of an occupancy permit. It is neither unjust to expect the municipality to assume responsibility for approval of an unsafe basement wall, nor
(1) a mason contractor is entitled to rely on the building inspector's approval of the plans submitted for issuance of a building permit;
(2) where a mason contractor blindly follows plans provided by the general contractor, negligence for constructing an unsafe wall should be imputed to the general contractor;
(3) the trial court should have apportioned negligence to the general contractor because the superstructure was not attached to the basement wall; and
(4) the trial court should have apportioned negligence to the general contractor because the lot was improperly graded.
The first three arguments ignore the undisputed fact that the only plans in the record require solid blocks in the top course. There was sufficient evidence presented at trial that Trico's failure to use solid blocks prevented attachment of the superstructure to the basement wall, depriving it of substantial lateral support. This failure is Trico's alone, and the trial court as finder of fact was free to afford evidence of custom as much as or as little weight as it deemed appropriate. Marolla, supra.
The fourth argument ignores credible evidence that had the wall been constructed without defects, it would not have failed even if the lot was improperly graded. The trial court's findings and apportionment are not against the great weight and clear preponderance of the evidence.
The trial court held that Germantown Mutual was liable to plaintiffs under its homeowner's policy for the full amount of property damage, but was entitled to recover that amount from Muskego/Lee and Trico. Germantown Mutual argues that:
(1) the risk was never covered in the first instance under the policy;
(2) the risk was specifically excluded under the policy;
(3) the personal property loss is specifically excluded; and
(4) the property damage award exceeds its contract liability.
The first argument relies on the following language: "This policy insures against . . . [c]ollapse of buildings or any part thereof but excluding loss to . . . foundations . . . except as the direct result of the collapse of a building. Collapse does not include settling, cracking, shrinkage, bulging or expansion." [Emphasis added.]
Germantown Mutual argues that the meaning of the term "foundations" is unambiguous, and its plain meaning encompasses basement walls in addition to underlying footings. "Words or phrases in a contract are ambiguous when they are reasonably or fairly susceptible to more than one construction." Stanhope v. Brown County, 90 Wis.2d 823, 849, 280 N.W.2d 711, 722 (1979). The extensive trial record itself in this case stands as evidence of the varied reasonable construction of the term "foundation." Trico, who built the wall, admitted
We determine that the term "foundation" as used in the policy is ambiguous as applied to a basement wall and therefore reject Germantown Mutual's use of a dictionary to show the "plain meaning" of the term. See Garriguenc v. Love, 67 Wis.2d 130, 134, 226 N.W.2d 414, 416-17 (1975). "In the event of ambiguity or obscurity, the language of a policy should be construed against the insurance company which drafted the policy." Stanhope, supra, 90 Wis. 2d at 849, 280 N.W.2d at 722. "[T]he test is not what the insurer intended the words to mean but what a reasonable person in the position of the insured would have understood them to mean." Ehlers v. Colonial Penn Insurance Co., 81 Wis.2d 64, 74-75, 259 N.W.2d 718, 724 (1977). The terminology used by the witnesses at trial demonstrates that reasonable persons understood the term foundation not to include basement walls. The trial court did not err in determining that collapse of plaintiffs' basement wall
We reject the contention that this interpretation binds Germantown Mutual to "a risk it did not contemplate and for which it has not been paid." See Insurance Co. v. Universal Mortgage Corp., 82 Wis.2d 170, 178, 262 N.W.2d 92, 96 (1978). The catastrophic collapse of plaintiffs' basement wall is contemplated by the language of the policy, which does not render the company liable for run-of-the-mill basement wall leakage and shifting problems.
Germantown Mutual contends that the trial court erred when it found inapplicable policy provisions which excluded loss "caused by, resulting from, contributed to or aggravated by" earth movement, surface water, or water below the surface of the ground "including that which exerts pressure on . . . foundations [or] walls."
In support of its contentions, Germantown Mutual marshalls evidence, including reports of plaintiffs' experts, which tended to show that the excluded conditions contributed to the collapse. "On appeal, this court will examine the record, not for evidence to support a finding which the trial court did not make, but for facts to support the finding the trial court did make." First National Bank v. Nennig, 92 Wis.2d 518, 535, 285 N.W.2d 614, 623 (1979). Eyewitness testimony refuted a finding of surface water being present at or immediately preceding the collapse of the wall. Hypothetical assumptions of water below ground surface were refuted by eyewitness testimony that the ground was not saturated at the time of collapse, and by evidence that water below ground surface could not exert pressure until the ground was saturated. There was no evidence of earth movement preceding the collapse. The trial court's findings
Germantown Mutual contends that the exclusions apply to the damage to personal property, which it alleges was occasioned by earth movement, surface water, or water beneath the surface entering the basement after the collapse of the wall. There was ample evidence for the trial court to find that this damage occurred simultaneously with and was caused solely by the wall collapse, which was of a sudden and violent nature, causing block fragments to abrade Mrs. Hawes' heel as she fled up the stairs.
Germantown Mutual contends that it is not liable under its policy for the $5,000 loss in market value of the home after repairs because the policy expressly limits recovery for loss to a covered building structure to the smaller of the replacement cost or cost of repair. We agree, and modify that portion of the judgment awarding plaintiffs $14,616 against Germantown Mutual by substracting $5,000. Judgment on Germantown Mutual's cross-complaints against Trico and Muskego/Lee is accordingly reduced by $2,500 each.
By the Court. — Judgment modified, and as modified, affirmed.
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