Equinox on the Battenkill Mgmt. Ass’n., Inc. v. Philadelphia Indem. Ins. Co., Inc., No. 315-8-13 Bncv (Wesley, J. Jan. 29, 2014). 

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the 

accompanying data included in the Vermont trial court opinion database is not guaranteed.] 

VERMONT SUPERIOR COURT 

SUPERIOR COURT CIVIL DIVISION 

Bennington Unit Docket No. 315-8-13 Bncv 

Equinox on the Battenkill Management 

Association, Inc. 

Plaintiff. 

v. 

Philadelphia Indemnity Insurance 

Company, Inc. 

Defendant. 

Decision and Order Denying Plaintiff’s Motion for Summary Judgment and Granting 

Defendant’s Cross-Motion for Summary Judgment

Background 

 Plaintiff, Equinox on the Battenkill Management Association, brings this declaratory 

judgment action against Defendant, Philadelphia Indemnity Insurance Company, to determine 

coverage under a commercial general liability policy which Defendant issued Plaintiff. Plaintiff 

manages condominiums in Manchester. In September 2012, Plaintiff noticed damage to the 

cantilevered balconies on some of its units. Plaintiff sought coverage for the repairs, which 

Defendant denied in February 2013. 

 Plaintiff’s cantilevered balconies have a history of repairs. Plaintiff replaced the untreated 

wood decking on the units with TREX planking. Plaintiff noticed water damage to some of the 

balconies and added structural reinforcements. In September 2012, Plaintiff noticed structural 

damage to the interior portions of some balconies. Plaintiff asserts that balcony M-7 collapsed 

and balcony K-3 partially collapsed. The damage was likely caused by moisture that rotted the 

structural support. The policy covers collapses that occur from hidden decay. Defendant disputes 

the damage was caused by “collapse” as defined by its policy. Defendant also asserts the 

balconies were built in an unprofessional manner exempting any damage from coverage. 

In support of its motion for summary judgment, Plaintiff attached reports from 

engineering consultants. On October 23, 2013, Christopher Benda, of Criterium LaLancette 

Engineers, produced a building inspection report. He made the report from visual inspections, 

did not undertake any destructive or invasive testing, and acknowledged that the report was “not 

an exhaustive technical evaluation.” The report noted the balconies suffered from water 

infiltration, insufficient reserve capacity, and an inadequate number of lag bolts. The report also 

notes cantilevered balconies often require continued maintenance because of rot issues. A letter 

from Richard LaLancette emphasized Mr. Benda’s report did not evaluate the property for code 

violations or identify design deficiencies. A letter from Barbara Evans of Knight Consulting to 

Alfred New further describes the balconies. According to Ms. Evans, the balcony that allegedly 
2 

“fully collapsed,” balcony M-7, had fallen approximately six inches. With repairs it sagged 

approximately two inches. The letter does not describe what happened to balcony K-3. 

The policy creates an exclusion for “collapse” except as provided by additional coverage 

for collapse. The additional coverage for collapse covers losses caused by “hidden decay.” The 

policy also excludes losses caused by “faulty, inadequate or defective: (2) design, specifications, 

workmanship, repair, construction, renovation, remodeling, grading, compaction; (3) materials 

used in repair, construction, renovation...” 

 Plaintiff moved for summary judgment on October 28, 2013. Plaintiff asserts the 

balconies collapsed from hidden decay. Plaintiff concedes there is a Vermont case that is 

unfavorable to its position. See Gage v. Union Mut. Fire Ins. Co., 122 Vt. 246 (1961). Gage held 

that “collapse” means falling together into a flattened form. Id. at 248. Plaintiff argues the Court 

should decline to follow Gage, or find it distinguishable, because the majority of courts have 

shifted away from its strict holding, and, further, the policy in this case is different from the 

policy in Gage. 

 Defendant moved for summary judgment on December 4, 2013. Defendant first argued 

the building damage was caused by defective construction, faulty design, and poor choice of 

materials. Under the exclusion for faulty design, they deny coverage. Second, Defendant argued, 

under Gage, the balconies did not collapse. 

 On January 21, 2014, Plaintiff opposed Defendant’s motion for summary judgment. 

Plaintiff again argued Gage is not controlling because the law has evolved since 1961 and Gage

involved different policy language. Specifically, the policy in Gage indicated “Loss by collapse 

shall mean only the collapse of the building(s) or any part thereof.” In contrast, the policy issued 

to Plaintiff covered “loss caused by or resulting from risks of direct physical ‘loss’ involving 

collapse of building or any part of buildings... Collapse does not include settling, cracking, 

shrinkage, bulging, or expansion.” Further, Plaintiff argues there are disputed material facts 

concerning the construction of the balconies that preclude summary judgment to Defendant in 

reliance on the exclusion for faulty design, workmanship or materials. Plaintiff filed a 

supplemental statement of disputed facts on January 22, 2014. 

Standard of Review 

The Court grants summary judgment “if the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 

V.R.C.P. 56(a). The Court makes all reasonable inferences and resolves all doubts in favor of the 

non-moving party. Lamay v. State, 2012 VT 49, ¶ 6, 191 Vt. 635. When interpreting an insurance 

policy, the Court seeks to implement the plain meaning of an insurance contract. Vt. Mut. Ins. 

Co. v. Parsons Hill P’ship, 2010 VT 44, ¶ 21, 188 Vt. 80. Where an ambiguity exists, the Court 

construes the policy in favor of the reasonable expectations of the insured. Id. Further, it is the 

burden of the insurer to show an exclusion applies. State v. CNA Ins. Cos., 172 Vt. 318, 330 

(2001). 
3 

Discussion 

 The issue in these motions is the meaning of “collapse.” As highlighted by the parties, 

Gage is the closest Vermont Supreme Court case to address this issue. See 122 Vt. at 248. In 

Gage, Plaintiff sought coverage for a buckled ceiling, heaves in the floor, splintered linoleum 

flooring, bends in the plumbing, changes in the door frame, separation of the fireplace from the 

chimney, and movement away from the foundation. Id. at 247. The policy covered “collapse”, 

which “shall mean only the collapse of the building(s) or any part thereof.” Id. 

 In analyzing the meaning of “collapse”, the Supreme Court first gave an example: 

shingles blowing off of a roof would not be a collapse but the entire roof falling in would be a 

collapse. Id. at 248. The Court also quoted two dictionary definitions. Id. From Webster, 

“collapse” means “to fall together suddenly, as the two sides of a hollow vessel.” Id. From 

Century Dictionary, “collapse” means “to fall together or into an irregular mass or flattened 

form, through loss of firm connection or rigidity support of the parts or loss of the contents, as a 

building through the falling in of its side...” Id. Under these definitions, the damages claimed by 

the plaintiff were not due to “collapse,” as that term was used in the policy based on its evident 

meaning and usage. Id. at 248–49. 

 The Supreme Court noted but rejected a more expansive definition of “collapse” 

recognized by the Kansas Supreme Court. Id. at 249; see Jenkins v. U.S. Fire Ins. Co., 347 P.2d 

417, 422 (1959). The Kansas Supreme Court defined “collapse” as “the settling, falling, 

cracking, building or breaking of the insured building or any part thereof, in such manner as to 

materially impair the basic structure or substantial integrity of the building...” Id. The Vermont 

Supreme Court found the definition of collapse in Jenkins “far too expansive.” Id.

 In more than fifty years, our Supreme Court has not had occasion to revisit its holding in 

Gage. However, Judge VanBenthuysen more recently considered the meaning of “collapse” in 

an insurance contract. See Murphy v. Patriot Ins. Co., No. 182062008, 2009 WL 9144510 (Vt. 

Super. Ct. Oct. 30, 2009) (VanBenthuysen, J.). The plaintiff’s homeowner’s policy covered 

collapse. Id. Collapse did not “include settling, cracking, shrinking, bulging or expansion.” Id.

The plaintiff made claims for collapse for storm damage, damage to the chimney, and damage 

caused by fungi. Id. The court applied the definition of “collapse” in Gage and granted summary 

judgment to the defendant. Id. The court quoted Gage, noting that Gage rejected the broad view 

of “collapse” upheld by the Kansas Supreme Court in Jenkins. Id. 

 Cases from other jurisdictions vary on the meaning of “collapse.” See What constitutes 

"collapse" of a building within coverage of property insurance policy, 71 A.L.R.3d 1072. 

Plaintiff cites Malbco Holdings, LLC v. AMCO Insurance Co. arguing the modern trend is to 

follow Kansas’s broad definition of collapse. See 629 F.Supp.2d 1185, 1195 (D. Or. 2009). 

However, the case law is too fragmented for such easy classification. For example, a homeowner 

sought coverage for imminent collapse of a deck under a homeowner’s policy that defined 

collapse as falling into pieces and did not include settling or cracking. Rosen v. State Farm Gen. 

Ins. Co., 70 P.3d 351, 353 (Cal. 2003). The California Supreme Court rejected the homeowner’s 

claim as excluded by the plain language of the policy. Id. at 357. On the other hand, the 

Connecticut Supreme Court considered a case where a homeowner sought coverage for collapse 
4 

because of damage to the structural integrity of his home. See Beach v. Middlesex Mut. 

Assurance Co., 532 A.2d 1297, 1300–01 (Conn. 1987). The court found the policy did not 

unambiguously require a sudden cave-in in order to trigger coverage, and therefore declared 

coverage in effect under the circumstances presented. Id. at 1301.1

 

 Under Vermont law, the insurance policy in this case excludes coverage because Plaintiff 

did not suffer a collapse. Plaintiff can not escape the gravamen of the holding in Gage, which is 

binding precedent as applied to the circumstances here. “Collapse” means the building or a 

portion of the building must fall down or flatten. See 122 Vt. at 248. Plaintiff has offered no 

evidence of a collapse of this sort, as to either balcony M-7 or balcony K-3, thus the damages 

claimed by Plaintiff are too far removed from collapse to support coverage. See id. The report by 

Ms. Evans indicates that balcony M-7, the balcony that Plaintiff claims collapsed, sagged six 

inches. Sagging six inches is not a collapse under Gage. See id. Plaintiff provides even less 

information about the alleged partial collapse on balcony K-3. These vague assertions and a 

characterization of the damage as collapse are insufficient to survive a motion for summary 

judgment. 

 The Court does not adopt the more expansive definition of “collapse,” urged by Plaintiff 

as the current majority view, because Gage explicitly considered the reasoning of Jenkins and 

rejected it as too broad. See id. at 249. Concurring with Judge VanBenthuysen’s opinion in 

Murphy, this Court affirms that Gage is still good law. See 2009 WL 9144510. 

 The Court is not persuaded that the differences between the policies here as compared to 

Gage help Plaintiff. The policy in Gage defined “collapse” as “only the collapse of the 

building(s) or any part thereof.” 122 Vt. at 247. In this case, the policy covers “loss caused by or 

resulting from risks of direct physical ‘loss’ involving collapse of building or any part of 

buildings... Collapse does not include settling, cracking, shrinkage, bulging, or expansion.” The 

exclusion of collapse for settling, cracking, shrinkage serves to limit the meaning of collapse, not 

to expand it. The reasoning of Gage therefore still excludes coverage for the balconies. 

 Defendant is entitled to summary judgment because the balconies did not collapse. There 

are no material disputed facts and Defendant is entitled to judgment as a matter of law. See 

V.R.C.P. 56(a). For the same reason, Plaintiff is not entitled to summary judgment. The Court 

does not reach the question of the cause of the damage to the balconies. 

 

1

There are even a few cases concerning damage to balconies, although their holdings are not particularly useful 

here. See, e.g., Island Breakers v. Highland Underwriters Ins. Co., 665 So.2d 1084, 1085 (Fla. Dist. Ct. App. 1995) 

(finding disputed facts on the “the nature, extent, and cause of the damage found in some of the balconies of the 

condominium building.”); W. Am. Ins. Co. v. Chateau La Mer II Homeowners Ass’n, Inc., 622 So.2d 1105, 1107–09 

(Fla. Dist. Ct. App. 1993) (remanding for fact finding on whether insect damage was hidden). 
5 

Order

 The Court DENIES Plaintiff’s motion for summary judgment. The Court GRANTS

Defendant’s motion for summary judgment. Defendant shall submit a proposed judgment within 

10 days of this entry. 

Dated and signed electronically at Bennington, Vermont on January 29, 2014 

 

 John P. Wesley 

 Superior Court Judge