Up or Down? Semantics Key in 1100 Block Claim

What does the word “up” mean, really?

To the average person, that question may border on the absurd. But in the world of litigation, judges routinely find themselves contemplating such queries – often with huge sums of money hinging on their answers.

Such is the case in an ongoing lawsuit in federal court filed by local jeweler Howard’s Diamond Center against its insurance company, Hartford, for refusing to pay a claim of almost $700,000 on their vacant former downtown Wheeling store, which was severely damaged during the city’s demolition project on much of the 1100 block of Main and Market streets in 2012. The plaintiff alleges the city’s contractor, Dore and Associates of Michigan, caused the damage when one of its construction vehicles struck a common wall between the former jewelry store and the adjacent Feet First building which was being demolished, propelling bricks onto and through the roof of its building.

But Hartford claims the jeweler’s insurance policy clearly states it only provides for coverage in the event of a loss caused by “physical contact of … a vehicle or an object thrown up by a vehicle with the Covered Property.”

“In fact, it is indisputable that the property damage … occurred when the top of the adjacent masonry wall of the (Feet First) building fell down onto” the Howard’s Diamond Center building roof,” wrote Hartford’s attorney, Wheeling lawyer Melanie Norris, in a recent motion asking U.S. District Judge John Preston Bailey to throw out the jeweler’s lawsuit.

But in their cross motion for summary judgment in favor of Howard’s Diamond Center, attorneys David Jividen and Chad Groome argue that the policy is rife with ambiguities, failing to define adequately such terms as “up,” “object” and “physical contact.”

“With respect to the word ‘up,’ it too is not defined by the policy … How far ‘up’ must an object travel (to) be considered going ‘up?’ A foot? An inch? A micron? If the term is not defined, how can any person state an object did not go ‘up?’ … Furthermore, what if the ‘object’ is ‘thrown up’ and then bounces, then goes back ‘up’ again and hits the structure on the downward rebound? Is that ‘up’ under the policy? What if the covered building is sitting below a cliff and a ‘vehicle’ on top of the cliff strikes a stone that it projects ever so slightly up, but then falls down onto the building – is that a covered loss?” the document states.

According to Jividen and Groome, West Virginia case law is clear: When insurance policies are ambiguous, the language must be construed in favor of the insured, not the insurer.

Howard’s Diamond Center claims its building is a total loss. Despite a 2008 appraisal – conducted about two years before the business left downtown Wheeling for The Highlands – that listed the building’s value at $68,200, the jeweler’s policy with Hartford sets “full value replacement cost” at $647,400. Ancillary claims for personal property and debris removal bring the total claim to $688,800.

The building was last assessed by the Ohio County Assessor’s Office at $29,588. Based on that figure, the building’s market value today would be about $49,000, using the typical 60 percent standard for property assessments.

There is no trial date set in the case, and Bailey has imposed a Jan. 15 deadline for the parties to mediate the dispute. Neither the city nor Dore and Associates is named as a defendant in the suit.

City Manager Robert Herron has said that once the lawsuit is resolved, he will renew negotiations to purchase the former jewelry store, which Wheeling officials had targeted several years ago for inclusion in the 1100 block demolition project, which created a large block open space downtown that the city hopes to market for future development. They were unable to reach an agreement to buy the building, however.

Herron said the building – which lacks a roof and reportedly sustained damage to each of its floors – will need to be torn down regardless of whether the city acquires the property.