Jefferson County Schools v. Tennessee Risk Management Trust ( 2018 )

03/15/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
January 16, 2018 Session
JEFFERSON COUNTY SCHOOLS v. TENNESSEE RISK MANAGEMENT
TRUST, ET AL.
Appeal from the Chancery Court for Jefferson County
No. 14-CV-120 Ben W. Hooper, II, Judge
No. E2017-01346-COA-R3-CV
In this appeal concerning insurance coverage, Jefferson County Schools (“Plaintiff”) sued
its insurers, Tennessee Risk Management Trust and Travelers Indemnity Company
(“Defendants”), in the Chancery Court for Jefferson County (“the Trial Court”). Building
8 at Jefferson County High School collapsed during a rainstorm. The Tennessee State
Fire Marshal’s Office ordered Plaintiff to implement repairs to prevent a future collapse
of both the damaged and undamaged portions. Plaintiff asserted that, pursuant to an
“ordinance or law” provision in its insurance policy, Defendants were responsible for
coverage for additional work in undamaged portions of Building 8 in order to comply
with the Fire Marshal’s directive. Defendants argue in response that the additional work
was discretionary and went beyond what the insurance policy covered. After a hearing,
the Trial Court entered judgment in favor of Defendants. Plaintiff appeals. We hold that
the Fire Marshal’s directive, issued under that office’s authority, qualified as an
“ordinance or law.” Defendants were, therefore, required to cover the additional work.1
We reverse the judgment of the Trial Court and remand for determination and entry of a
monetary judgment in favor of Plaintiff.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed;
Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR. and THOMAS R. FRIERSON, II, JJ., joined.
Albert J. Harb and Bart C. Williams, Knoxville, Tennessee, for the appellant, Jefferson
County Schools.
1
Tennessee Risk Management Trust, while a party on appeal, no longer is actively involved in this
litigation. We refer to the defendants collectively for convenience.
Russell E. Reviere and Jonathan D. Stewart, Jackson, Tennessee, for the appellees,
Tennessee Risk Management Trust and the Travelers Indemnity Company.
OPINION
Background
On July 7, 2013, a major rainstorm occurred in Jefferson County. A portion of
Building 8, an aging vocational building at Jefferson County High School, collapsed. No
one was present at the time. Building 8 was covered through Tennessee Risk
Management up to $100,000 less a $500 deductible. Excess claims were covered by
Travelers Indemnity Company. The insurance policy contained an “ordinance or law”
provision providing for coverage of expenses “caused by the enforcement of any
ordinance or law.” The policy provided as relevant:
f. Ordinance or Law
If a Covered Cause of Loss occurs to Covered Property, the Company will
pay for:
(1) The loss to the undamaged portion of a covered building caused by
the enforcement of any ordinance or law that:
(a) Requires the demolition of parts of the same property not damaged by a
Covered Cause of Loss;
(b) Regulates the construction or repair of buildings, or establishes zoning
or land use requirements at the Insured’s premises; and
(c) Is in force at the time of loss.
The most the Company will pay for loss or damage under this portion of
Ordinance or Law is the Limit of Insurance specified for Ordinance or Law
— Undamaged Portion shown in the Supplemental Coverage Declarations.
***
(3) The increased cost to repair, rebuild or construct the Covered
Property caused by enforcement of building, zoning, land use or any other
ordinance or law when the Covered Property is insured for replacement
cost. If the covered building is repaired or rebuilt, it must be intended for
similar occupancy as the current building, unless otherwise required by
zoning or land use ordinance or law.
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The Company will not pay for increased construction costs until the
Covered Property is actually repaired or replaced, at the same location or
elsewhere; and unless the repairs or replacement are made as soon as
reasonably possible after the loss or damage but not to exceed 2 years. The
Company may extend this period in writing during the 2 years.
The most the Company will pay for loss or damage under this portion of
Ordinance or Law is the increased cost of construction repair or
replacement:
(a) Of a building of the same size and at the same premises, or another
premises if required by the ordinance or law, and
(b) Limited to the minimum requirements of such ordinance or law
regulating the repair or reconstruction of the damaged property on the same
site. not to exceed the Limit of Insurance specified for Ordinance or Law—
Increased Cost of Construction shown in the Supplemental Coverage
Declarations.
***
D. EXCLUSIONS
1. The company will not pay for loss or damage caused directly or
indirectly by any of the following. Such loss or damage is excluded
regardless of any other cause or event that contributes concurrently or in
any sequence to the loss.
***
h. ORDINANCE OR LAW
The enforcement of any ordinance or law:
(1) Regulating the construction, use or repair of any property; or
(2) Requiring the tearing down of any property, including the cost of
removing its debris;
except as provided in the Covered Costs and Expenses, item B.2.f.
Ordinance or Law
The Ordinance or Law exclusion applies whether the loss results from an
ordinance or law that is enforced even if the property has not been
damaged; or from the increased costs incurred to comply with an ordinance
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or law in the course of construction, remodeling or demolition of property,
or removal of its debris, following a physical loss to that property.
On July 8, 2013, David Pittman with the Tennessee State Fire Marshal’s Office
issued a directive to school officials stating in part that “[a] structural engineer will need
to evaluate the remaining structure of the vocational building to ensure that the structural
integrity of the remaining building is in adequate condition and future collapses will not
occur.” Plaintiff did that. Expensive work ensued. Travelers paid for reconstruction of
the collapsed portion of Building 8, as well as certain additional work in the rest of the
building. In all, Travelers paid out over $900,000 on the claim. However, disagreements
arose as to coverage beyond this point. The engineer of record, Carl Taylor, retained by
Plaintiff as directed by the Fire Marshal determined that compliance with the Fire
Marshal’s directive required vertical reinforcement of the remainder of Building 8. Mark
Buchanan, Defendants’ engineer, opined that additional reinforcement on the remainder
of Building 8 went beyond what was necessary. Travelers declined to pay for this
additional work.
In October 2014, Plaintiff sued Defendants in the Trial Court. Plaintiff argues
that, pursuant to the “ordinance or law” provision of the insurance policy, Defendants are
responsible for the additional work undertaken in order to comply with the Fire Marshal’s
directive. For their part, Defendants contend that they already have fulfilled their
responsibilities under the insurance policy, and that their paying for the additional work
would result in an undue windfall for Plaintiff.
This case was tried without a jury in June 2017. The most pertinent testimony
came from the sides’ respective engineers, Carl Taylor and Mark Buchanan.
Carl Taylor, Plaintiff’s engineer, testified in part as follows:
Q. Alright. Now, when you were looking around Building-8 in its
collapsed state in terms of your trying to comply with that directive, and
we’ve already marked it, I don’t need to keep plowing new ground so to
speak, but what was it about that Building-8 that was of concern to you in
terms of a structural evaluation? Let’s talk about the walls, the height of
the halls, all the different factors, just talk to the Judge about that.
A. Well, you are correct, the walls were one concern because of their
height.
Q. Do you remember how high --
A. And the slenderness. No, I do not, but they’re relatively tall walls. We
looked at how the bar joists were anchored to the walls, where it had fallen
you had access to the actual joists, and the joist-bearing were not adequate.
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Q. Both in the collapsed area and the non-collapsed?
A. Yes.
THE COURT: The joist-bearings?
A. Yes, where the bar joists rest on the wall, how they’re anchored. And
so we did that on, I believe the 10th, and on the 11th I believe we went up
in a lift and I tried to look at the other portions of the building at the joist-
anchorage, looked for any distress that was obvious to the naked eye in the
building.
***
Q. Okay. Would this building be, in terms of a classification, a sound
building, fragile building? Do you understand what I’m asking? And
you’re looking at it from a structural-engineering standpoint.
A. It would be a building that I would consider to be in impossible distress.
And then after reviewing the existing drawings, to see the fact that the walls
are not reinforced or anything else, I would have to at least consider it to be
deficient, given that there had been a collapse.
Q. Alright. Now, you said that you looked at the original drawings and
they weren’t reinforced, what do you mean by reinforcement?
A. There was not any reinforcing steel in the block walls, any vertical
reinforcement.
Q. And would you normally combine concrete in conjunction with that
steel --
A. Yes.
Q. -- to solidify that joint?
A. Right, yes sir.
Q. What’s the effect of that, especially on a building like this that’s just
collapsed, what would that do to this building?
A. It would reduce greatly any possible distress or concerns with it.
Concrete block and brick have no strength when it comes to bending.
When you have wind loads or something like on the wall and the wall
bends, mortar has almost no strength. It’s like concrete is not strong in
tension, when you try to bend it concrete’s not strong. So you have
reinforcing steel to take those loads, to hold the elements of the block wall
together.
Q. Alright. So the process of filling these block walls with concrete and
rebar is designed to cure that problem?
A. Yes.
Q. Now, let’s take a quick look, if we could, at the Fire Marshal’s
directive, which has been marked as Exhibit 3A. We’ve got two different
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ones, one is easier to read, so look at 3A. And in particular, I’d ask you to
look at the last paragraph on the second page, 1-of-2, do you see that?
A. Yes.
Q. This was the directive, “A structural engineer will need to evaluate the
remaining structure of the vocational building to ensure that the structural
integrity of the remaining building is in adequate condition and future
collapses will not occur.” Was that the charge as you understood it, sir?
A. That is the charge, but I must say that one cannot state that there will be
no future collapses.
Q. Alright. So your duty was to satisfy the State Fire Marshal’s Office as
best you could?
A. As their intent of it being in adequate condition and that someone would
sign off to say it is safe to be occupied.
Q. And that someone would be?
A. Me, under the circumstances.
Mark Buchanan, Defendants’ engineer, testified in part as follows:
Q. Alright. After you were able to determine what the mechanism of
failure was, in your professional opinion, was that failure caused by the
lack of reinforcement in the masonry in that wall?
A. No, sir.
Q. Explain that to the Court.
A. Alright, so we have gravity loads which are vertical, they’re created
from gravity. And we have lateral loads, wind loads, earthquakes, anything
that pushes on the side of the building. Masonry is very, very strong under
compression, gravity loads.
Q. Explain what you just said when you said masonry is very strong under
compression.
A. So if we have a concrete block and we try to push on the top of it, it’s
very strong in that direction. Gravity, down-force. If we try to bend a
block wall like wind blowing on wall, it goes into bending. Just like a
piece of paper, if I take this piece and apply force here, it bends. So, when I
do this, this exterior face of the wall on this side goes into tension, it’s
trying to pull itself apart, the inside is in compression. So when that
masonry wall is built and is under pure gravity loads, is 100% pushing
down, there’s no tension in the wall. I have never seen a masonry wall fail
in compression, I’ve seen them fail in shear, which is very unique, I’ve seen
them fail in flexure multiple times, but never in compression. So just the
pure weight of the water pushing down on the joists, loading the wall,
would not have created any failures on this building whatsoever.
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Q. And how certain of that are you?
A. 100%.
***
Q. And in the end result, Mr. Buchanan -- again, not looking at it through
the lens of what an insurance company paid or not paid -- did you interpret
what had to be done as you would regardless of whether an insurance
company had hired you or Jefferson County had hired you?
A. It doesn’t matter who I work for.
Q. Let me do it this way: If Jefferson County after this collapse had said
we want to hire you to give us advice of what we have to do and need to do
structurally to fix this, get it approved by the Fire Marshal, but make sure
we have a structurally-sound building, to put kids and people like your
parents in, teachers and all the people that work in and out of that building,
would your plans have been any different than scenario A ones we looked
at? Would that change what your professional opinion was about how to
address this and fix it?
A. If they had come to me as a client, I would sit down with them and
explain the different scenarios. You can’t have reinforcement? You don’t
have to have reinforcement. It’s a good idea, it’s an expensive idea. Is it
safe without it? It meets the code. I would explain that and have them
make an informed decision. I call this the golden rule, the person with the
gold gets to make the rule. I don’t care if they reinforce their block or not,
my only objective is to meet the minimum standards of the code that I’m
given in order to provide a safe environment for whoever’s in the building.
Now, that’s not to say that reinforcing block is a bad idea, it’s not. I
designed a facility for Arnold Engineering for 350 mile-an-hour winds,
there has never been 350 mile-an-hour winds tracked on the interior of the
United States of America. And I pointed that out to them. And their
answer was, pardon my French, “We don’t give a s---, that’s what we want
you to [do].” And that’s what I did. They had the gold, they made the rule,
I complied. In this particular case, the code says what I did is exactly spot
on. There’s no doubt in my mind I did the right thing.
Q. And was that the same thing you would’ve done in 2008, 2009, 2011?
A. Whenever. Today.
Q. So, to be very clear, is there any question in your mind about what you -
- and it was you telling Travelers, right? [Y]ou were the one making this
judgment, they were using you?
A. I’m the one that was responsible for that, yes sir.
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Q. Any doubt in your mind that what you ultimately showed to the Court
and the drawings you just explained, complied in every respect with what
the 2006 IBC code said had to be done?
A. Structurally, that’s a correct statement.
Q. Without any doubt?
A. No doubt.
Evidence at trial reflected $575,955.93 as the cost for the disputed additional work.
In June 2017, the Trial Court entered its final judgment, finding in favor of
Defendants. The Trial Court found and held as follows:
With the request for a jury trial being waived, this case came on for
hearing on June 7 and 8, 2017, before the Court. A review of the file shows
a complaint for declaratory judgment based on a significant rain event
occurring July 7, 2013, and causing the partial collapse of the roof of
Building 8 and structural damage to the building.
The issue from the court files presented the question of whether or
not certain repairs required to put Building 8 in compliance with the
“Standards and Codes” was a covered loss under the policy. (Exhibit # 21).
This issue was then agreed upon by the parties that the rain event of July 7,
2013, was in fact a Covered Cause Loss and the policy was a Replacement
Cost Policy. The part of the policy that must be construed by the Court is
found under Section B.(2)(f), page 6 of the Property Coverage Form
attached hereto and being a page from Exhibit 21. As stated in the
plaintiff’s written argument (Plaintiff’s Statement of Facts and
Conclusions) “the analysis of this claim, therefore, must depend upon
whether the facts of this case provide coverage under the above cited
provisions”.
Tennessee Risk Management Trust is no longer involved in this
litigation. To conduct this analysis requires looking at every exhibit filed
and admitted, all the evidence introduced, and the written arguments of
counsel. The parties did provide some relief to the Court by stipulating
that:
a. The Tennessee State Fire Marshal’s Office (TSFMO) is empowered to
adopt building codes for the State of Tennessee.
b. At the time of the loss, the building codes adopted by the TSFMO and
that were in effect were the 2006 International Building Code (2006 IBC),
as well as the 2003 National Fire Protection Association 101 (2003 NFPA
101).
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c. The TSFMO has exclusive jurisdiction of the enforcement of these codes
as they apply to schools.
There was a collapsed portion of Building 8 that created no dispute
and was paid for by the defendant, Travelers. In addition, Travelers noted a
problem of no bar joist ties into the walls, and they repaired and paid for
this work even though it was in the uncollapsed portion of Building 8.
Their work, also included a whole new roof and scuppers for overflow
water, plus providing $170,000 to accommodate the needs of the shop
which had been damaged.
It was here that the generosity of Travelers came to an end and they
refused to cover and pay for the reinforcement of the masonry walls in the
uncollapsed portion of Building 8.
The Court will not go into detail about all the evidence offered, other
than to say there was a lot and that all of it is important except for the fact
that the first bridge to cross is whether or not this claim can survive the
language of the policy of insurance. The Court finds that it cannot. The
court will state the defendant’s witness, Mike Buchanan was found to be
very knowledgeable and credible and his testimony was given substantial
weight. Section (f). Ordinance or Law says:
“If a Covered Cause of Loss occurs to Covered Property, the Company will
pay for:
(1) The loss to the undamaged portion of a covered building caused by the
enforcement of any ordinance or law that:”
Considering this portion of the policy, and keeping in mind that the word
“undamaged” is used, whereas during the trial of this case it was usually
referred to as “uncollapsed”, it can be seen that there must be a loss caused
by the enforcement of any ordinance or law. The plaintiff, having this
burden, has failed. There has been no showing of a code violation
(ordinance or law). The fire marshal’s directive set out no code violation,
nor can one be found anywhere in the evidence of this case as to the
undamaged or uncollapsed portion of Building 8. If the Court is wrong,
then the first subsection under (1) is “(a) Requires the demolition of parts of
the same property not damaged by a Covered Cause of Loss;”. This
condition has certainly not been met by the evidence. There is no coverage
under the policy of insurance. Plaintiff’s claim is dismissed with costs to
the plaintiff. Lastly, do not assume for one moment that the brevity of this
Judgment is any indication of the amount of time it has taken this Court to
come to this conclusion.
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Plaintiff timely appealed to this Court.
Discussion
We restate and consolidate the issues Plaintiff raises on appeal into the following
dispositive issue: (1) whether the Trial Court erred in holding that Defendants did not
provide coverage for and, therefore, were not responsible for the additional work
performed throughout Building 8.
Our review is de novo upon the record, accompanied by a presumption of
correctness of the findings of fact of the trial court, unless the preponderance of the
evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727
(Tenn. 2001). A trial court’s conclusions of law are subject to a de novo review with no
presumption of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58
S.W.3d 706, 710 (Tenn. 2001).
“In general, courts should construe insurance contracts in the same manner as any
other contract.” American Justice Ins. Reciprocal v. Hutchison, 15 S.W.3d 811, 814
(Tenn. 2000). In interpreting the policy, this Court’s task is to determine the intention of
the parties, and view the “[t]he language of the policy . . . in its plain, ordinary and
popular sense.” Id.; Guiliano v. Cleo, Inc., 995 S.W.2d 88, 95 (Tenn. 1999).
Accordingly, this Court has held:
[an insurance policy] should not be given a forced, unnatural or
unreasonable construction which would extend or restrict the policy beyond
what is fairly within its terms, or which would lead to an absurd conclusion
or render the policy nonsensical and ineffective.
Dixon v. Gunter, 636 S.W.2d 437, 441 (Tenn. Ct. App. 1982) (citing 44 C.J.S. Insurance
§ 296); see also Demontbreun v. CNA Ins. Co., 822 S.W.2d 619, 621 (Tenn. Ct. App.
1991) (holding that an insurance policy should not be construed to extend “coverage
beyond its intended scope”). This Court has a “duty to enforce contracts according to
their plain terms[,]” and we are “precluded from creating a new contract for the parties.”
Bob Pearsall Motors, Inc. v. Regal Chrysler-Plymouth, Inc., 521 S.W.2d 578, 580 (Tenn.
1975).
Defendants argue that the Fire Marshal’s directive, lacking as it was in any
citations to specific code violations, fails to constitute an “ordinance or law” for purposes
of coverage under the insurance policy. As stated by the Trial Court in its final judgment,
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the parties in this case stipulated to the following with respect to the Fire Marshal’s
authority:
a. The Tennessee State Fire Marshal’s Office (TSFMO) is empowered to
adopt building codes for the State of Tennessee.
b. At the time of the loss, the building codes adopted by the TSFMO and
that were in effect were the 2006 International Building Code (2006 IBC),
as well as the 2003 National Fire Protection Association 101 (2003 NFPA
101).
c. The TSFMO has exclusive jurisdiction of the enforcement of these codes
as they apply to schools.
Given these stipulations, we can see no way that the Fire Marshal’s directive could be
construed as merely discretionary rather than having the force of law. Plaintiff had to
comply with the Fire Marshal’s directive before it could use a repaired Building 8.
Defendants, in their brief on appeal, acknowledge the Fire Marshal has the power
to “to force compliance with specific portions of the International Building Code that
would be enforcement of an ordinance or law” but that “Plaintiff has not shown
enforcement of any such provisions” and “[t]he existence of the power alone is not
enforcement of an ordinance or law.” Respectfully, the Fire Marshal exercised this
power when the directive was issued to Plaintiff. A review of relevant 2006 IBC
provisions is illuminating. Under Section 115.1 the 2006 International Building Code,
“Unsafe structures shall be taken down and removed or made safe, as the building official
deems necessary and as provided for in this section.” Section 506.2.1 of the International
Existing Building Code states: “Regardless of the extent of structural damage, dangerous
conditions shall be eliminated.” Section 110.1 of the 2006 IBC provides further: “No
building or structure shall be used or occupied, and no change in the existing occupancy
classification of a building or structure or portion thereof shall be made until the building
official has issued a certificate of occupancy therefor as provided herein.” While the Fire
Marshal’s directive did not cite these specific provisions, there is no question that the Fire
Marshal had the authority to enforce these code provisions. Additionally, there is no
question this is exactly what the Fire Marshal did when it directed the school officials to
retain a structural engineer to “evaluate the remaining structure of the vocational building
to ensure that the structural integrity of the remaining building is in adequate condition
and future collapses will not occur.”
In a case from the Fifth Circuit United States Court of Appeals, the court
discussed the building officials’ authority and affirmed in part the district court’s ruling
in a factually analogous case:
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HSIC next asserts that the Ordinance does not require demolition or
regulate repair as required by the Policy but merely gives discretion to the
building officials. Section 116.1 of the Ordinance provides that “[u]nsafe
structures shall be taken down and removed or made safe, as the building
official deems necessary.” This language mandates the removal or repair of
unsafe structures. HSIC, however, points out that, though there were five
previous fires at the Property, the building official did not mandate a re-
design of the flex duct work until the December 2012 fire. This does not
change our conclusion. The Lafayette Consolidated Government (the
“City”) did not adopt the Ordinance until 2011, and the five previous fires
all occurred between 1997 and 2010. Even if the building official’s prior
lack of action was sufficient to preclude coverage under Section 2.f.(1), the
Ordinance was not in effect at the time of the earlier fires.
HSIC also asserts that the correspondence between City officials and
Meadows West’s management shows that the Ordinance did not “require
demolition” or “regulate repair.” We disagree. In his January 18, 2013,
letter (the “January 18 Letter”) to Nevils, Manuel threatened to resort to
legal action. Further, though the January 18 Letter does not specifically
cite any ordinance or law, Manuel again corresponded with Nevils on April
12, 2013 (the “April 12 Letter”). In the April 12 Letter, Manuel explicitly
stated that he was authorized by law to take necessary steps to “resolve this
problem [of potential fire hazards] under [Section 116], which has been
adopted by the Lafayette Consolidated Government.” Manuel issued a
repair deadline of September 30, 2013, and informed Nevils that he would
disrupt the power to all of the unrepaired units if the repairs referenced in
the January 18 Letter were not completed. Taken together, the January 18
Letter and the April 12 Letter indicate that Manuel “deemed [the Property]
an unsafe condition” and “specifie [d] the required repairs or improvements
to be made to abate the unsafe condition ... within a stipulated time” as
required by the Ordinance.
Finally, Meadows West was required by City officials to reconfigure
the flex duct work. Manuel identified the flex duct work as a fire hazard
and instructed that it be removed and repaired. Following this
determination, Manuel: (1) requested that Meadows West hire a Louisiana
licensed contractor; (2) instructed Meadows West to have the repair drawn
and designed by a mechanical engineer; and (3) suggested acceptable
repairs. While Manuel did not mandate a specific type of repair aside from
the removal of the flex duct work, the repair plans still had to be approved
by the Planning, Zoning, and Codes Department, and the repair itself was
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subject to inspection by the fire marshal. Thus, Meadows West was
required, by law and through the application of the Ordinance, to remove
and replace the flex duct work, triggering the Ordinance or Law Provision.
Houston Specialty Ins. Co. v. Meadows West Condo Ass’n, 640 Fed. Appx. 267, 272-73
(5th Cir. 2016).
In the present case, the Fire Marshal’s directive ordered school officials to retain a
structural engineer to “evaluate the remaining structure of the vocational building to
ensure that the structural integrity of the remaining building is in adequate condition and
future collapses will not occur.” Plaintiff complied with the Fire Marshal’s directive, as
it was required to do. Plaintiff’s engineer, Carl Taylor, determined that reinforcement of
the walls in the non-collapsed parts of Building 8 was required in order to comply with
the Fire Marshal’s directive. With respect to Buchanan, an experienced engineer, his
opinion that the additional work was unnecessary does not negate that of the engineer of
record retained by Plaintiff in accordance with the Fire Marshal’s directive to ensure the
structural integrity of the remaining building. The Trial Court found Buchanan credible.
While we afford great deference to a trial court’s credibility determinations, the
credibility determination here is beside the point as it was not and is not relevant to the
issue as stated by the Trial Court of “whether or not this claim can survive the language
of the policy of insurance.” This language of the policy referred to by the Trial Court is
the “ordinance or law” provision.
As directed by the Fire Marshal, it was incumbent upon Plaintiff to retain an
engineer and submit repair plans for official approval, which they did. Defendants have
failed to identify how the Fire Marshal’s office exceeded its authority. We are not
unmindful of Defendants’ concerns regarding the limits to their responsibility under the
policy, which is not open-ended. However, we hold that it was the Fire Marshal’s
authority under then existing Tennessee law to issue the directive it did. It was this
directive that triggered the “ordinance or law” provision of the insurance policy.
Building 8 was a covered property under the insurance policy. There was,
indisputably, a covered cause of loss. The Fire Marshal’s directive carried the force of
law and Plaintiff had to obey it if it wished to re-occupy Building 8. Mr. Pittman of the
Tennessee State Fire Marshal’s Office issued a directive that required the Plaintiff to
retain a structural engineer to “evaluate the remaining structure of the vocational building
to ensure that the structural integrity of the remaining building is in adequate condition
and future collapses will not occur.” Plaintiff was required to comply with this directive
if it wished to occupy the building. Plaintiff, in compliance with the Fire Marshal’s
directive, retained Carl Taylor as the engineer of record. It was Mr. Taylor’s
determination, as the engineer of record retained pursuant to the State Fire Marshal’s
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directive, that compliance with the Fire Marshal’s directive required the additional work
in dispute. Plaintiff had no choice but to comply with the Fire Marshal’s directive if it
wished to occupy the building. Plaintiff’s adherence to the Fire Marshal’s directive
resulted in increased costs and, therefore, fell under the ambit of the replacement cost
policy.
We hold that, under the terms of the insurance policy and the evidence presented
in this case, Defendants are responsible for covering the cost of the additional work
necessary to comply with the Fire Marshal’s directive. We, therefore, reverse the
judgment of the Trial Court. We remand this case for the Trial Court to determine the
amount of the monetary judgment in favor of Plaintiff and to enter a judgment for that
amount.
Conclusion
The judgment of the Trial Court is reversed, and this cause is remanded to the
Trial Court for collection of the costs below and further proceedings consistent with this
Opinion. The costs on appeal are assessed against the Appellees, Tennessee Risk
Management Trust and the Travelers Indemnity Company.
____________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
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