United States: WV Court Rules Earth Movement Exclusion Unambiguously Precludes Coverage Regardless Of Whether Landslide Was A Man-Made Or Naturally-Occurring Event

Last Updated: July 14 2017
Article by Heidi Hudson Raschke

In Erie Insurance Property and Casualty Company v. Chaber, No. 16-0490 (W. Va. June 1, 2017), the Supreme Court of Appeals of West Virginia reversed a lower court's decision, holding that damage caused by a landslide was excluded, regardless of whether the landslide resulted from excavations or naturally occurred, where the policy excluded loss whether such loss is "caused by an act of nature or is otherwise caused." The court went on to follow the law of other jurisdictions and find that an ensuing loss provision is not ambiguous and will not reinstate coverage for excluded losses.

'Til the Landslide Brought It Down

The insured property, a commercial rental unit leased to a motorcycle shop, was damaged when soil and rock slid down a hill at the rear of the property. Based on the policy's earth movement exclusion for landslide, the insurer denied coverage. The policy exclusion provided:

A. Coverages 1, 2, 3, 4, and 5
We do not cover . . . "loss" or damage caused directly or indirectly by any of the following. Such "loss" or damage is excluded regardless of any cause or event that contributes concurrently or in any sequence to the "loss":
* * *
5. Earth Movement
* * *
b. Landslide, including any earth sinking, rise, or shifting related to such event.
* * *
This exclusion applies regardless of whether any of the above in Paragraphs 5.a. through 5.d., is caused by an act of nature or is otherwise caused.
But if Earth Movement, as described in 5.a. through 5.d. above, results in fire, explosion, sprinkler leakage, volcanic action, or building glass breakage, we will pay for the "loss" or damage caused by such perils.

Based on the exclusion's ensuing loss provision that provided coverage for certain resulting damage, the insurer acknowledged coverage for glass breakage at the building, but the amount of that damage did not exceed the policy's deductible.

The insureds filed suit seeking a declaration of coverage, among other relief. During the litigation, both parties retained engineering experts. The insurer's expert initially provided an oral report opining that the landslide was caused by improper excavation of the hillside behind the property. Her formal report indicated that the damage was caused by a rockfall resulting from seasonal climate change. The insureds' expert opined that improper excavation of the highwall area at the rear of the property caused the rockfall and that the highwall failure resulted from a rockfall rather than a landslide.

The circuit court denied the insurer's motion for summary judgment finding genuine issues of material fact regarding the causes of the damage – whether they were manmade, natural, or a combination of both – and whether there is insurance coverage for the claimed damages. Following a bench trial, the lower court ruled in favor of the insureds. The court determined there was coverage because the earth movement was caused by both natural and manmade events, and the policy did not unambiguously exclude damage caused by rockfall due to improper excavation and that the policyholders could reasonably expect coverage for the earth movement at issue. The court also found the ensuing loss clause ambiguous.

Changin' Insurance Tides

On appeal, Erie argued that the earth movement exclusion clearly and unambiguously excludes coverage for all earth movement, regardless of whether such movement was caused by an act of nature or otherwise caused, quoting the following pivotal policy language: "This exclusion applies regardless of whether any of the above . . . is caused by an act of nature or otherwise caused."

Interpretation of this particular exclusionary language was an issue of first impression for the Supreme Court of Appeals of West Virginia and it reviewed rules of contract interpretation related to determining whether an insurance policy is ambiguous. To be found ambiguous, a policy provision must be reasonably susceptible to more than one meaning or of such doubtful meaning that reasonable minds might be uncertain or disagree as to its meaning. "A court, however, should read policy provisions to avoid ambiguities and not torture the language to create them."

The court had previously found exclusionary language ambiguous where a policy "excluded certain losses regardless of whether the event 'arises from natural or external forces, or occurs as a result of any combination of these." Murray v. State Farm Fire & Casualty Co., 509 S.E.2d 1, 13 (W. Va. 1998). The court had found the word "external" ambiguous and refused to "define the word to include man-made forces as [the insurer] would have us do." Id. However, the "external forces" language was not in the exclusion at issue.

The court explained that the language at issue "was developed by the Insurance Services Office in 2013 and was apparently designed to minimize confusion regarding the scope of coverage and the nature of the earth movement exclusionary language." It then noted that courts in several different jurisdictions have interpreted the language since its inception have held that it is not ambiguous. The court concluded by stating:

"We have unearthed no authority for a finding of ambiguity in this exclusionary phrase. The phrase clearly and unambiguously excludes coverage for a landslide resulting from a natural event or otherwise. A provision in an insurance policy excluding a loss regardless of whether such loss is "caused by an act of nature or is otherwise caused" is not ambiguous and excludes coverage for the loss whether it is caused by a man-made or a naturally-occurring event. Thus, in the present case, whether the event was triggered by natural forces or improper excavation of the hillside at the rear of the property, the exclusion applies.

The court also quickly dispensed with the insureds' assertions regarding efficient proximate cause, anti-concurrent causation, and reasonable expectations. The court explained that the anti-concurrent causation clause in the exclusion (excluding the enumerated losses "regardless of any cause or event that contributes concurrently or in any sequence to the loss") only becomes relevant if the efficient proximate cause of the loss is determined to be a covered risk. "In other words, where neither of the alleged 'causes' is covered by the insurance policy, there is no event or occurrence to be evaluated to determine which of the two is the efficient proximate cause; such evaluation would be an exercise in futility." Because the court determined that the earth movement exclusion "unambiguously precludes coverage for earth movement caused by either natural or man-made events, the question of the proximate cause of the landslide is not relevant." Moreover, the insureds' reasonable expectations did not come into play because the court found no ambiguity in the contract. It is the policy's terms, and not the insureds' reasonable expectations, that define the coverage.

Last, the court held that the circuit court's interpretation of the ensuing loss provision was unjustifiable. That clause states that if an excluded earth movement "results in fire, explosion, sprinkler leakage, volcanic action, or building glass breakage, [the insurer] will pay for the 'loss' or damage caused by such perils." The lower court had held the clause was ambiguous and had interpreted it to provide coverage for the entire rock slide because it held that glass breakage is not a peril. The Supreme Court of Appeals of West Virginia disagreed. It noted that other jurisdictions had not found such ensuing loss provisions ambiguous or unenforceable and concluded:

"Upon this Court's evaluation of the ensuing loss provision, we hold that an unambiguous ensuing or resulting loss clause of an exclusion contained in an insurance policy provides a narrow exception to the exclusion but does not revive or reinstate coverage for losses otherwise unambiguously excluded by the policy. Where an uncovered event occurs, an ensuing or resulting loss that is otherwise covered by the policy will remain covered, but the uncovered event itself is not covered.

Thus, the court agreed with the insurer's application of the "narrow exception" in the earth movement exclusion to provide coverage for the portion of the loss caused by glass breakage. This amount, however, was below the policy's deductible.

This decision is supported by the plain language of the policy exclusion and demonstrates that courts should "decline[] to adopt a 'strained interpretation of the language of the policy in order to create an ambiguity where none exists.'" (Quoting BSI Constructors, Inc. v. Hartford Fire Ins. Co., 705 F.3d 330, 334 (8th Cir. 2013).)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions