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Filed 10/31/13 Kantor v. Mid-Century Ins. CA1/1 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIRST APPELLATE DISTRICT 

DIVISION ONE 

KEN KANTOR, 

 Plaintiff and Appellant, 

v. 

MID-CENTURY INSURANCE 

COMPANY, 

 Defendant and Respondent. 

 A136878 

 (Contra Costa County 

 Super. Ct. No. C11-00951) 

 Plaintiff and appellant Ken Kantor (Kantor) appeals the judgment entered in favor 

of defendant and respondent Mid-Century Insurance Company (Mid-Century) after the 

trial court granted Mid-Century’s motion for summary judgment on the grounds the 

damage to Kantor’s residence did not constitute a “collapse,” and therefore, was not a 

covered loss under the terms of his homeowners insurance policy. We shall affirm. 

BACKGROUND

 Kantor filed his complaint against Mid-Century in April 2011, attaching a copy of 

the Farmers Next Generation Homeowners Policy, No. 93961-56-74 (Policy), issued by 

Mid-Century for the period of August 17, 2009 to June 1, 2010, and under which Kantor 

is the named insured. The complaint alleged as follows: While the Policy was in effect 

in December 2009, Kantor learned that a concrete slab floor of the dwelling had 

collapsed approximately 4.5 inches and required repair or replacement. The collapse of 

the slab caused the bearing walls to move and other damage to the upper second-story 

portion of the house requiring work to level it back to the condition prior to collapse, and 
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work on the lower level including the replacement of slab, supporting grade beam and 

retaining walls, walls and flooring. Prior to discovering the collapsed slab, Kantor had 

begun remodeling work on his home and had placed the contents of the lower floor on the 

second floor above the area of the collapse. The weight of the contents above caused the 

transfer of weight through the bearing walls to collapse the slab. 

 The complaint further alleged Kantor provided notice of the collapsed slab to MidCentury in December 2009 and Mid-Century failed to make a full and fair investigation 

of the loss. After acceding to Kantor’s request to reopen the file in November 2010 to 

consider additional information, Mid-Century denied his claim despite the fact that the 

damage was covered under paragraph 10 of Section I, Extensions of Coverage in the 

Policy as a collapse of a structural part of the dwelling. Based on the foregoing 

allegations, the complaint asserted causes of action for breach of contract and breach of 

the implied covenant of good faith and fair dealing and prayed for judgment including 

general and special damages, attorney fees, and punitive and exemplary damages. 

 Mid-Century filed its motion for summary judgment in April 2012. In its motion, 

Mid-Century argued it was entitled to judgment as a matter of law because the damage to 

the concrete slab was not a “collapse” under the terms of the Policy. Mid-Century also 

argued that even if there was a triable issue as to whether the damage constituted a 

“collapse” under the Policy, any such collapse was not caused directly by one of the 

covered collapse perils, such as “weight of persons, animals, contents or equipment.” 

 Subsequently, the trial court held a hearing on August 1, 2012, and thereafter 

entered an order granting Mid-Century’s motion for summary judgment. The order 

stated: “Plaintiff alleges that he had placed contents from the lower floor of his home on 

the second floor above the area of a ‘collapsed’ concrete slab, and that the weight of the 

contents above caused the transfer of the weight through the bearing walls to collapse the 

slab. Plaintiff alleges that Defendant breached the insurance policy by failing to pay 

Plaintiff for the repair of the collapse, which is covered under the policy. [¶] The subject 

policy defines ‘collapse’ as ‘a sudden and accidental, actual and complete falling down or 

caving in of the building structure or of a structural part of the building structure.’ While 
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the evidence on this motion shows that a portion of the slab dropped in elevation by 4.5 

inches, it does not show there was a ‘collapse’ within the meaning of the policy. 

Plaintiff’s admissible evidence is insufficient to show there was a ‘complete falling down 

or caving in’ of the slab, or that there was any ‘sudden’ movement of the slab. [Citations 

to record.] [¶] Because Defendant did not breach the policy, it did not act in bad faith and 

therefore the 2nd cause of action also lacks merit. [Citation.] [¶] . . . [¶] [¶] Defendant’s 

objections nos. 2-9 & 13-18 are sustained . . . .” In sustaining those evidentiary 

objections by Mid-Century, the trial court excluded sections of declarations by Robert 

Bradsby, a licensed architect, and Kevin Dawson, a claims handling expert, which Kantor 

submitted in opposition to summary judgment. 

 Judgment was entered on August 20, 2012, and notice of entry of judgment was 

served by mail on August 29, 2012. Kantor filed a timely notice of appeal on October 17, 

2012. 

DISCUSSION 

 As noted above, Mid-Century moved for summary judgment on two grounds, viz., 

(1) the damage to the concrete slab does not constitute a “collapse” under the terms of the 

Policy and (2) even if a “collapse” occurred, it was not caused by the “weight of persons, 

animals, contents or equipment,” such as to fall within the Policy coverage for “collapse.” 

The trial court granted summary judgment on the first ground only, and did not reach the 

issue of causation central to the second ground asserted by Mid-Century for summary 

judgment. Accordingly, the key issue before us is whether the undisputed scope and 

extent of the damage to the subject concrete slab constituted a “collapse” within the 

meaning of the Policy. 

 To resolve this issue, we shall first set forth the relevant Policy language, before 

outlining the legal principles governing a determination of insurance coverage. Then we 

shall describe the scope and scale of the damage to the subject concrete slab, as reflected 

in the undisputed record facts, apply the governing legal principles to the undisputed 

facts, and determine de novo whether the trial court properly granted summary judgment. 
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(See Krantz v. BT Visual Images (2001) 89 Cal.App.4th 164, 167 [appellate court reviews 

order granting summary judgment de novo].) 

Policy Language 

 Section I of the Policy, relating to Property Coverage, includes a section 

describing “Uninsured Types of Loss or Damage” and “Excluded Causes of Loss or 

Damage.” Paragraph 29 of “Excluded Causes of Loss or Damage” lists “Collapse” with 

the proviso that: “[W]e do provide limited coverage for collapse of a building structure 

or any structural part of a building structure in Section I—Extensions of Coverage, 

Collapse of Building Structure or Structural Part of the Building Structure.” 

 Paragraph 10 of Section I—Extensions of Coverage is entitled “Collapse of 

Building Structure or Structural Part of the Building Structure.” Paragraph 10 states in 

pertinent part: “We cover loss or damage to covered property caused by collapse of a 

building structure or any structural part of the building structure. . . . The collapse must 

be a sudden and accidental, actual and complete falling down or caving in of the building 

structure or of a structural part of the building structure. A structural part of the building 

structure means a part of the building, which if it fell down or caved in, would threaten 

the structural integrity of the building structure. Substantial impairment of a building 

structure or structural part of a building structure without a sudden and accidental, actual 

and complete falling down or caving in is not a collapse. Collapse does not mean 

imminent or threatened collapse. Collapse does not include movement, settling, 

cracking, bulging, shrinkage, heaving or expansion, whether natural or otherwise, of the 

building structure or a structural part of the building structure unless an actual and 

complete falling down or caving in has occurred.” 

Applicable Legal Principles 

 “ ‘Where no dispute surrounds material facts, interpretation of an insurance policy 

presents solely a question of law.’ [Citation.]” (Carson v. Mercury Ins. Co. (2012) 210 

Cal.App.4th 409, 426.) And as we stated in Mercury Ins. Co. v. Pearson (2008) 169 

Cal.App.4th 1064, 1070 (Mercury Ins.), “Where a case turns on the interpretation of an 

insurance policy, the court reviews the policy’s terms under the ordinary rules of contract 
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interpretation. [Citation.] If the policy language is clear and explicit, it governs. 

[Citation.] If the policy terms are ambiguous or uncertain, the court must attempt to 

determine whether coverage is consistent with the insured’s objectively reasonable 

expectations. [Citation.] If this rule does not resolve the ambiguity, it must be resolved 

against the insurer. [Citation.]” 

 Furthermore, “[i]n determining whether an ambiguity exists, the words of the 

policy must be interpreted according to the plain meaning that a layperson would 

ordinarily attach to them. [Citation.] Policy language is ambiguous when it reasonably 

may be interpreted in two or more ways. [Citation.] ‘Courts will not adopt a strained or 

absurd interpretation in order to create an ambiguity where none exists.’ [Citation.] 

Moreover, the language must be interpreted in the context of the policy as a whole, and in 

light of the circumstances of the case. It cannot be deemed to be ambiguous in the 

abstract. [Citation.]” (Mercury Ins., supra, 169 Cal.App.4th at p. 1070.) 

 “Policy exclusions are strictly construed. [Citation.] Exceptions to exclusions on 

the other hand, are broadly construed in favor of the insured. [Citation.] As a result, 

‘ “an insurer cannot escape its basic duty to insure by means of an exclusionary clause 

that is unclear. . . .” ’ [Citation.] Thus, ‘the burden rests upon the insurer to phrase 

exceptions and exclusions in clear and unmistakable language.’ [Citation.]” (Jordan v. 

Allstate Ins. Co. (2004) 116 Cal.App.4th 1206, 1214 (Jordan).) 

Scope and Extent of the Property Damage 

 Kantor’s residence is a two-story structure; the surface area on the first floor living 

area is a concrete slab, and the living area above rests on wooden two-inch by twelveinch floor joists. Damage to the first floor concrete slab was first discovered in 

December 2009, when, in the course of remodeling work, a contractor tore up the carpet 

on the first floor and found there was a large crack in the concrete slab and the slab was 

caved in approximately four inches. 

 Following this discovery, Kantor retained MC Construction Services (MC 

Construction) to investigate. In the report prepared by R. Mark McCarter, President of 

MC Construction, dated December 24, 2009, the damage is described as follows: 
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“During my site walk [on December 9], I observed severe, recessed elevation to your 

concrete slab. In addition, the entire slab has numerous cracks that radiate from this 

sunken slab area. We returned to your residence at a later date and measured elevation 

differentials throughout the basement slab. There is a 4.5 inch differential at the worst 

area of the slab.” 

 On December 28, 2009, per Kantor’s request, MC Construction provided a 

proposal “to perform epoxy injection crack repairs and floor leveling repairs” that 

entailed injecting epoxy into 45 linear feet of cracks to the retaining wall and 245 linear 

feet of cracks on the concrete slab, and installing Pro Spec Level Set to level the concrete 

slab floor in place. On February 25, 2010, MC Construction carried out a “void survey” 

and reported there was approximately 52 square feet of slab that had “significant void 

space underneath the concrete,” with voids ranging from one inch to 13 inches in depth. 

According to MC Construction’s “void calcs,” 33 bags of material would be required to 

fill the voids. Michael McGill, President and Principal Engineer of MMS Design 

Associates completed a site inspection at the Kantor residence in April 2011 at the behest 

of Mid-Century’s claims representative, and reported “the residence was still undergoing 

remodel and interior construction. New ‘slate’ material flooring was being installed and 

covers the lower level concrete slab. With the new flooring material in place, it was not 

possible to observe the current slab condition. We also could not observe the supporting 

fill or native soil type beneath the slab, nor any of the defects in the previous slab which 

have subsequently been repaired.” 

 In his deposition in November 2011, Kantor described cracks in the concrete slab 

and stated he saw “a slab that had collapsed, . . . the flexion looked like about three to 

four inches” over a range of 12 to 15 linear feet. Kantor did not photograph the damage 

to the slab. While the remodeling and repair works to the first floor were in progress, 

Kantor moved into the upper half of the house. 

Analysis 

 As noted above, the Policy excludes loss or damage caused by “Collapse.” 

However, as an exception to that exclusion, the Policy covers loss or damage due to 
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“collapse” of the building structure or any structural part of the building structure where

the collapse constitutes “a sudden and accidental, actual and complete falling down or 

caving in of the building structure or of a structural part of the building structure.” 

 In short, to constitute “collapse” under the Policy, the “caving in” must be “actual 

and complete,” because the adjectives “actual and complete” modify both gerund phrases 

in the disjunctive clause, “falling down or caving in.” (See, e.g., Ward General Ins. 

Services, Inc. v. Employers Fire Ins. Co. (2003) 114 Cal.App.4th 548, 554 [noting that 

“the first adjective in a series of nouns or phrases [] modif[ies] each noun or phrase in the 

following series unless another adjective appears”]; and In re Jesusa V. (2004) 32 Cal.4th 

588, 622 [noting the “ ‘ “ordinary and popular” ’ meaning of the word ‘or’ is well settled. 

[Citation.] It has a disjunctive meaning: ‘In its ordinary sense, the function of the word 

“or” is to mark an alternative such as “either this or that.” ’ [Citation.]”].) 

 Further, although exclusions are “generally viewed through a more critical prism, 

the principle that words are considered in their ‘ordinary and popular sense’ is not 

discarded, and, thus, in interpreting a word in an insurance policy, including a word in an 

exclusion, a court may consult and consider definitions found in a common dictionary, 

provided the court does not disregard the policy’s context, and maintains an eye on the 

fundamental goal of deciding how a layperson policyholder might reasonably interpret 

the exclusion’s language.” (Baker v. National Interstate Ins. Co. (2009) 180 Cal.App.4th 

1319, 1340.) In Merriam-Webster’s Collegiate Dictionary, “actual” is defined as 

“existing in act and not merely potentially” and “existing in fact or reality”; “complete” is 

defined as “fully carried out,” “thorough,” “total, absolute.” (Merriam-Webster’s 

Collegiate Dict. (10th ed. 2001) pp. 12, 235.) 

 In the context at bar, these dictionary definitions reflect how a proverbial 

layperson policyholder would interpret the Policy language, “actual and complete . . . 

caving in.” In short, a layperson policyholder would understand that language to mean an 

actual—not potential—total, absolute and thorough caving in of the concrete slab. (Cf. 

Jordan, supra, 116 Cal.App.4th at p. 1221 [“It seems self-evident that the policy’s use of 

the term ‘entire’ collapse necessarily must refer to an actual, not an imminent collapse. 
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For a building or a portion thereof to sustain an ‘entire collapse’ must mean that it has 

entirely collapsed, that is ‘wholly,’ ‘completely,’ or ‘fully.’ [Citation.]”].) 

 Indeed, the language in the insuring clause at issue (the Extension of Coverage for 

Collapse) emphasizes the total and complete nature of the damage required in order to 

constitute a “collapse” under the Policy. More than “substantial impairment” of the 

building structure or structural part of a building structure is required; “[c]ollapse does 

not mean imminent or threatened collapse” and “does not include movement, settling, 

cracking, bulging, shrinkage, heaving or expansion, whether natural or otherwise, of the 

building structure or a structural part of the building structure unless an actual and 

complete falling down or caving in has occurred.” Because Mid-Century has phrased 

these exceptions to “collapse” in “clear and unmistakable language” (Jordan, supra, 116 

Cal.App.4th at p. 1214), that language must govern. (See Mercury Ins., supra, 169 

Cal.App.4th at p. 1070.) 

 Here, even construing the exception to the exclusion for “Collapse” broadly in 

favor of the insured, as we must (see Jordan, supra, 116 Cal.App.4th at p. 1214), the 

undisputed evidence shows the concrete slab had numerous cracks in it and, at its worst 

point, had subsided, sunk, or partially caved in at one area to a depth of around four or 

five inches. By contrast, nothing in the record indicates that the damage amounted to a 

total, absolute, and thorough caving in of the concrete slab, such as to constitute a 

“collapse” within the meaning of the Policy. Kantor, however, asserts we should remand 

because whether a “collapse” occurred is a question of fact, citing Jordan,1 and argues 

there is a triable issue regarding whether an actual collapse occurred, as shown by an 

 1

 Kantor refers to a “collapse” of the rear deck of his property caused by 

overloading it with building materials. However, Kantor cannot use an alleged collapse 

of his rear deck to raise a triable issue of fact on whether the concrete slab actually 

collapsed, as the complaint alleged only a collapse of the concrete slab and did not allege 

a collapse of the rear deck. The summary judgment proceeding is a test of the pleadings 

(see, e.g., FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 382), and a 

plaintiff opposing summary judgment may not advance a new unpleaded legal theory to 

defeat the motion. (See City of Hope Nat. Medical Center v. Superior Court (1992) 8 

Cal.App.4th 633, 639.) 
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admission by Mid-Century, in its initial denial letter, that the concrete slab was 

“sinking.”2

 Kantor’s reliance on Jordan is misplaced. Similarly to our analysis above, the 

Jordan court examined the dictionary definition of “dry rot” before concluding a policy 

exclusion for “wet or dry rot” applied to damage caused by fungus. (See Jordan, supra,

116 Cal.App.4th at pp. 1215–1216.) The Jordan court found the policy at issue was 

ambiguous as to whether, despite that exclusion, “wet or dry rot” damage would be 

covered under a claim for “collapse.” The court resolved that ambiguity in favor of the 

insured, noted the parties had not addressed “with appropriate evidentiary support” the 

question of whether the damage amounted to an “imminent” collapse or an “actual” 

collapse as required under the policy, and stated that “[w]hether such a collapse occurred 

in this case is a factual matter that the trial court must resolve in the first instance.” (Id.

at pp. 1221–1222.) On that basis, the court reversed the summary judgment in favor of 

the insurer and remanded for further proceedings. (Id. at p. 1223.) In contrast to Jordan, 

however, in our case the Policy is not ambiguous; the parties presented all available 

evidence regarding the scope and extent of the damage to the concrete slab; the parties 

fully briefed the issue of whether the damage to the concrete slab constituted a “collapse” 

under the Policy, and the trial court resolved the issue in favor of Mid-Century. 

Accordingly, Jordan does not mandate reversal in this case.3

 2

 The letter to Kantor dated January 19, 2010, stated, in regard to the loss reported 

by Kantor in December 2009, that the “claim was for cracking and sinking of the concrete 

slab in the lower level of your home.” 

3

 Kantor also contends reversal is mandated because the trial court committed 

prejudicial error in excluding the declaration of Robert Bradsby, a licensed architect, and 

the opinions of Kevin Dawson, a claims handling expert, submitted by Kantor in 

opposition to summary judgment. A trial court’s ruling on the admissibility of expert 

testimony is reviewed for abuse of discretion. (Garrett v. Howmedica Osteonics Corp.

(2013) 214 Cal.App.4th 173, 187.) However, even if the trial court’s ruling amounted to 

an abuse of discretion, any error was harmless: The excluded evidence bears on the issue 

of causation of the damage, rather than the scope and extent of the damage, and thus was 

irrelevant to the issue of whether the actual damage amounted to a total, absolute, and 

thorough caving in of the concrete slab, thereby constituting a “collapse” within the 
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 In sum, upon de novo review, we conclude the trial court properly granted 

summary judgment in favor of Mid-Century on the grounds that the damage to the 

concrete slab is not a covered loss under the Policy. 

DISPOSITION

 The judgment is affirmed. Appellant shall bear costs on appeal. 

 ______________________ 

 Sepulveda, J.* 

We concur: 

______________________ 

 Margulies, Acting P.J. 

______________________ 

 Banke, J. 

* Retired Associate Justice of the Court of Appeal, First Appellate District, Division 

Four, assigned by the Chief Justice pursuant to article VI, section 6 of the California 

Constitution. 

 

meaning of the Policy. We also reject Kantor’s assertion that the trial court improperly 

granted summary judgment on his bad faith claim. (See Benavides v. State Farm General 

Ins. Co. (2006) 136 Cal.App.4th 1241, 1250 [“an insured cannot maintain a claim for 

tortious breach of the implied covenant of good faith and fair dealing absent a covered 

loss”].)