WHAT CONSITUTES EARTH MOVEMENT?

In Mid-Continent Cas. Co. v. Krolczyk, the First Court of Appeals addresses application of the “earth movement”, which states in relevant part:

This insurance does not apply to . . . “property damage” . . . arising out of, caused by, resulting from, contributed to, aggravated by, or related to earthquake, landslide, mudflow, subsidence, settling, slipping, falling away, shrinking, expansion, caving in, shifting, eroding, rising, tilting or any other movement of land, earth or mud.

In the underlying case, there were allegations of an alleged defective construction of a paved road. Specifically, it was alleged that some of the damage to the road was caused by the washing out of some of the base which had been exposed to the elements.

Mid-Continent suggested that the exclusion included minor movements of the earth caused by rain or the elements, and damages were at least “related to” the “movement of land, earth or mud.” The insured pointed out that the exclusion states that the movement must be that “of land, earth or mud,” but the allegations are that the road base was made of man-made materials, including concrete.

The court noted that for the “earth movement” exclusion to apply, the property damage must be related to the movement “of land, earth or mud.” The court concluded that the ordinary meaning of land, earth, and mud do not encompass concrete or other man-made materials. Since the underlying petition did not specify whether the “part of the base” of the road that was “exposed to the elements” and washed out by rain was built of land, earth or mud, and the allegations did not mention any other earth movement, this exclusion did not abrogate Mid-Continent’s duty to defend.

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