Elsey v. Hastings Mutual Insurance
Elsey v. Hastings Mutual Insurance
Opinion of the Court
On August 17, 1983, plaintiffs filed
Meanwhile, plaintiffs consulted with Pearl Troxel, the owner of a construction company, to evaluate the condition of their home. Troxel informed plaintiffs that their house was sinking, but he was unable to pinpoint the cause, i.e., whether it was due to settling or some other factor. Troxel advised plaintiffs to have the house remeasured the following year. Troxel came back to remeasure in the spring of 1982.
In June, 1982, plaintiffs finally consulted the attorney to whom they had been referred. In December, 1982, upon the attorney’s advice, plaintiffs sent notice of the damage to their home to both Home and Hastings. The claims were denied by each in January and March, 1983, respectively.
On the attorney’s advice, plaintiffs then hired an engineer to evaluate their home. On June 28, 1983, the engineer submitted a report to plaintiffs which indicated that their house was collapsing.
MCL 500.2832; MSA 24.12832 sets forth the statutorily required standard fire insurance policy. The limitation period at issue herein is identical to the statute at lines 157 to 161:
No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after inception of the loss.
This period of limitation begins to run from the date of the loss. In re Certified Question, Ford Motor Co v Lumbermen’s Mutual Casualty Co, 413 Mich 22, 38; 319 NW2d 320 (1982). Plaintiffs contend, however, that the inception of their loss and, hence, the accrual of their cause of action, occurred on June 28, 1983, when they received the report from the engineer which concluded that the house was collapsing and not merely settling. Plaintiffs contend that even though they knew the damage to their home had occurred, e.g., cracks in the fireplace and ceiling and a dip in the floor, they were not required to bring suit until they had knowledge of the cause of the damage, i.e., collapse rather than settlement. Hence plaintiffs wish us to interpret the phrase "inception of the loss” as being the time at which they had knowledge of the cause of the loss rather than the date of the loss. We decline to do so.
Moreover, it appears that plaintiffs knew or reasonably should have known of the damage to their home as early as the summer of 1981 when Mrs. Elsey consulted with John Lawrence. At this time, Mrs. Elsey indicated that her house was collapsing. We are of the opinion that plaintiffs should have immediately consulted the builder and an engineer to ascertain the cause of the damage to their home. It was at this time that plaintiffs should have consulted an attorney to ascertain their legal rights. Any other conclusion would prejudice the insurers.
Plaintiffs appear to be advocating the "discovery rule,” which states that the statute of limitations does not begin to run until the plaintiff discovers, or through the exercise of reasonable diligence should have discovered, that he has a possible cause of action. See Filcek v Utica Building Co, 131 Mich App 396, 399; 345 NW2d 707 (1984); Thomas v Process Equipment Corp, 154 Mich App
Affirmed.
Dissenting Opinion
(dissenting). I dissent and would remand the case for determination of when the loss occurred.
Plaintiffs filed this action on August 17, 1983. The trial court found that plaintiffs’ policy covers damage resulting from "collapse of the house, but excludes settling, cracking, shrinking, among other things.” The trial court also noted that the word "collapse” does not require a total collapse, relying on Vormelker v Oleksinski, 40 Mich App 618, 631; 199 NW2d 287 (1972), which apparently interpreted a similar policy. MCL 500.2832; MSA 24.12832 requires this action to have been brought within twelve months after "inception of the loss.” The trial court noted that the one-year period did not begin to run until plaintiffs had knowledge of the loss. The question then was when such knowledge existed.
This Court accepted the following definition of "collapse” in Vormelker, supra at 630:
"Collapse, as used in this policy, means a sinking, bulging, cracking, pulling away of the wall so as to impair its function of supporting the superstructure and destroying its efficiency as a habitation.”
The majority in the instant case ignores this definition and attempts to avoid "getting into an interpretation of 'inception of the loss,’ ” apparently with regard to whether knowledge of the loss
The trial court found only that plaintiffs’ knowledge of the loss occurred in August, 1981, after talking to Troxel, when plaintiffs knew "that they had a severe problem, although they were unaware of the real nature of it.” This does not satisfy the Vormelker definition of collapse or knowledge of collapse. The court’s finding admits that the cause of the damages was still unknown at that time. It is clear that plaintiffs knew their house was collapsing in December, 1982, when they sent a claim to both insurers, knowledge that was confirmed on June 28, 1983, when they received the engineer’s report. Plaintiffs’ suit was filed within one year of sending those claims. The question remains, however, whether plaintiffs should have known that their house was collapsing within the meaning of Vormelker earlier than one year before they filed suit.
I believe the record is devoid of sufficient findings with regard to that fact. Merely knowing of a "severe problem” is not enough to meet the definition, and Troxel’s statements do not appear to be enough on the record before us. I would remand for the trial court to determine at what point plaintiffs should have known that their house was collapsing under the Vormelker definition.
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