The opinion of the court was delivered by: DUMBAULD
Before us for disposition are plaintiff's motion for partial summary judgment, and defendant's motion for summary judgment. Both motions address the issue of liability. The question for decision is whether the "earth movement" exclusion in an insurance policy does or does not exclude coverage on two school buildings allegedly damaged in 1984 and 1985 by mine subsidence. The coal mining operations under the McMurray school ceased in 1945, forty years ago, and under the Elm Grove site in 1935, over fifty years ago.
If defendant's motion is granted, the entire case will be disposed of, on the ground of no liability under the policy. If plaintiff's motion is granted with respect to the issue of liability, a contested issue remains as to the cause of damage to the Elm Grove School building (built in 1948). It is conceded by both parties that the damage to McMurray Middle and Elementary School (built in 1929 with additions in 1957 and 1962) was caused by mine subsidence. The extent of damages (if liability is ultimately established) will also remain for future adjudication or settlement.
Without enumeration of authorities, we accept and apply the customary pertinent platitudes of insurance law, e.g. that insurance policies are to be construed in favor of the insured and against the company preparing the policy, the terms of which are often to be deemed contracts of adhesion; that "all risk" policies (with the exception
of the requirements of "fortuitousness" of risk; externality rather than "inherent vice" or ordinary wear and tear and deterioration; legality; freedom from fraud or wilful misconduct by the insured) afford coverage for all risks which are not specified in the exclusions contained in the policy. It is common ground in the case at bar that the question to be decided is whether damage resulting from mine subsidence is excluded by the "earth movement" clause in the policy.
We take judicial notice also of the fact that in Western Pennsylvania there has been much mining, and hence much likelihood that there may be mine subsidence which will extend to the surface if the underlying rock structure is not sufficient to support the upper strata of the earth. The right to support is, under Pennsylvania law, a "third estate" in the land, separate from the right to the surface and to the subjacent minerals. See Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 406, 67 L. Ed. 322, 43 S. Ct. 158 (1922) [a case argued by John W. Davis with opinion by Justice Holmes, Justice Brandeis on this occasion dissenting].
The sedes materiae in the policy is VI-D-1 (page 13 of Ex. A to Complaint) reading as follows:
This policy does not insure under this form against:
D. 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; . . .
unless fire or explosion as insured against ensues, and then this Company shall be liable for only loss caused by the ensuing fire or explosion; but these exclusions shall not apply to loss arising from theft.
1. wear and tear, deterioration, . . .; settling, cracking, shrinkage, bulging or expansion of pavements, foundations, walls, floors, roofs or ceilings; . . . unless loss by a peril not otherwise excluded ensues and then the ...