No. 00724 Pittsburgh 1982, Appeal from the Order of the Court of Common Pleas, Civil Division, of Allegheny County at No. GD-80-01417.
Edward D. Klym, Pittsburgh, for appellant.
David B. Mulvihill, Pittsburgh, for appellee.
Rowley, Johnson and Popovich, JJ.
[ 329 Pa. Super. Page 322]
This is an appeal from an Order of the Court of Common Pleas of Allegheny County granting a new trial limited to the issue of damages after the trial court directed a verdict in favor of Richard J. Patula and Diane Patula, his wife, appellees, and against appellant, Northwestern National Insurance Company of Milwaukee, Wisconsin.*fn1
Appellees instituted an action in assumpsit to recover the replacement value of a damaged retaining wall at 10483 Frankstown Road, Township of Penn Hills, Allegheny County, under a policy of insurance provided them by appellant.
[ 329 Pa. Super. Page 323]
Appellant initially contended that the collapse was caused by earth movement and shifting and that the said policy specifically excluded loss resulting from earth movement. Therefore, appellant refused payment on the basis of Section V1 of the aforementioned "Special Multiperil Policy" entitled " EXCLUSIONS ". This section reads as follows:
"This policy does not insure under this form against:
(c) Loss caused by, resulting from, contributed to or aggravated by any of the following:
1. earth movement, including but not limited to earthquake, landslide, mudflow, earth sinking, earth rising or shifting;"
After a trial on February 4, 1982, the lower court directed a verdict on behalf of the appellees on the issue of liability and awarded a new trial on the issue of damages. The court held that: "[T]here [was] no evidence that the [appellees] had been informed of the exclusion, or were aware of it."*fn2 The trial judge found that he had "no alternative to directing a verdict for the plaintiffs on liability," citing ...