Alexander Bardis v. Kitty Stinson ( 2016 )


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  •                  NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-3454-12T3
    ALEXANDER BARDIS and
    MONICA BARDIS,                          APPROVED FOR PUBLICATION
    Plaintiffs-Appellants,                February 19, 2016
    v.                                        APPELLATE DIVISION
    KITTY STINSON, STINSON
    CLAIMS SERVICES, and
    CUMBERLAND INSURANCE GROUP,
    Defendants-Respondents.
    _____________________________________________________________
    Argued December 4, 2013 – Decided October 8, 2014
    Before   Judges      Sapp-Peterson,   Maven    and
    Hoffman.
    On appeal from the Superior Court of New
    Jersey, Law Division, Monmouth County, Docket
    No. L-5738-11.
    Constantine Bardis argued the cause for
    appellants (Law Offices of Constantine Bardis,
    LLC, attorneys for appellants; Mr. Bardis, of
    counsel and on the brief).
    Jacqueline Cuozzo argued the cause for
    respondents (Methfessel & Werbel, attorneys
    for respondents; Ms. Cuozzo and Marc L.
    Dembling, on the brief).
    The opinion of the court was delivered by
    MAVEN, J.A.D.
    Plaintiffs Alexander Bardis and Monica Bardis appeal from
    the January 25, 2013 Law Division order granting summary judgment
    in favor of defendants Kitty Stinson, Stinson Claims Services
    (collectively    Stinson),    and          Cumberland    Insurance       Group
    (Cumberland) (collectively Defendants).             The trial court found
    there was no coverage under plaintiffs' homeowner's insurance
    policy for the collapsed basement wall and other damages to their
    home allegedly caused by "hidden decay." The court also rejected
    plaintiffs' argument that "hidden defects" allegedly resulting
    from the faulty construction meant the same as "hidden decay," and
    were thereby covered losses under the policy.           We find a question
    of   fact   regarding   causation,        and   ultimately   coverage,     and
    therefore, reverse and remand.
    I.
    We view the facts and all reasonable inferences therefrom in
    the light most favorable to the party against whom summary judgment
    was entered.    Brill v. Guardian Life Ins. Co. of Am., 
    142 N.J. 520
    , 540 (1995).    Plaintiffs are the owners and residents of a
    home insured by Cumberland since 2008.             The policy for general
    liability and commercial dwelling insurance, provided coverage for
    "direct physical" losses caused by, among other things, damage to
    a building caused by the weight of ice, sleet or snow.                        A
    supplemental provision provided further coverage for the "collapse
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    A-3454-12T3
    of a building or any structural part of a building that ensues"
    as a result of "hidden decay, unless such decay is known to an
    insured prior to the collapse." (Italicized in original) The
    supplemental provision also provided coverage for the collapse of
    a building caused by the "[u]se of defective material or methods
    in construction or repair if the     collapse occurs during the
    construction or repair."
    On December 26, 2009, the right basement wall in plaintiffs'
    old, single-family home collapsed.   The basement had been added
    to the home approximately twenty years earlier.   Plaintiffs filed
    a property loss claim with Cumberland which hired Stinson, an
    independent insurance adjuster, to determine whether plaintiffs'
    insurance policy covered the damage to their property. In a letter
    dated January 19, 2010, Stinson informed plaintiffs that their
    loss was not the result of a peril or cause of loss covered by
    their policy. The claim was specifically declined because "the
    damages sustained are a result of surface and subsurface ground
    water, weight of ice, sleet, snow and collapse."       The letter
    referred to the relevant portion of the policy that sets forth the
    exclusions upon which the denial was based.   "Section ID, Losses
    Not Insured, Paragraph 14" reads:
    WEIGHT OF ICE SLEET, OR SNOW, AND RELATED
    DAMAGE, AND COLLAPSE EXCLUSION
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    A-3454-12T3
    Damage to a . . . foundation . . . retaining
    wall . . . caused by:
    A. Freezing, thawing, pressure or weight of
    ice, sleet or snow.
    B. Collapse, other than collapse of a building
    or any structural part of a building.
    Stinson based its decision, in part, on the investigation of
    Sinan S. Jawad, a structural engineer. Jawad inspected plaintiffs'
    property on January 5, 2010.     In his report, he noted there had
    been "a significant rain storm and melting snow in the region on
    the loss date."    He defined hydrostatic pressure as "the pressure
    of the soil and the water in the soil on the wall."      The amount
    of pressure placed on a structure depends upon the type of soil
    present, as well as on the amount of water in the soil.         Jawad
    opined that "hydrostatic pressure, water, damaged the wall."     With
    respect to the structure of the property, Jawad reported that the
    basement had been added years after the original construction, and
    built over the crawl space.      He noted the block walls used to
    construct the basement are rarely used in modern construction
    because they are prone to strength and water infiltration problems.
    Further, the block walls are not strong in resisting hydrostatic
    pressure.     He also noted the basement was built without the
    required     underpinnings,   which   would   violate   present-day
    construction standards.
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    A-3454-12T3
    Plaintiffs retained structural engineer Michael Pierce to
    conduct a preliminary visual inspection.          Pierce conducted his
    inspection on July 26, 2010, after which he concluded as follows:
    The    collapse    revealed   that    the
    construction of the masonry sidewall consisted
    of a concrete masonry unit foundation wall
    "sistered" within the basement and alongside
    a shallow bearing wall, which directly
    supported the floor platform. It appears that
    the interior "sister wall" was installed to
    form the basement space after original
    construction was completed. A masonry chimney
    is located adjacent to the collapsed section
    of wall and the chimney foundation appeared
    to bear [sic] at the approximate level of the
    shallow outer foundation wall.
    It is my professional opinion within a
    reasonable degree of engineering certainty
    that the cause of the collapse was a lateral
    bending failure due to excessive horizontal
    loads. The original, shallow foundation wall,
    the footing of the adjacent chimney, and
    retained soil below the shallow wall, applied
    a surcharge loading to the sister wall. The
    excessive loading caused lateral displacement
    of the sister wall, which undermined the
    original shallow masonry foundation.
    On December 14, 2011, plaintiffs filed a complaint in the Law
    Division, alleging the basement wall collapsed due to hidden decay
    and chimney weight deterioration causing $175,000 in damages.
    Plaintiffs   further   claimed   their   insurance      policy   expressly
    covered   the   cost   of   damage   resulting   from    "hidden   decay."
    Plaintiffs demanded judgment against defendants in that amount,
    "with interest and costs of suit."       Defendants filed an answer on
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    A-3454-12T3
    January   11,   2012.        They   asserted,     among    other   things,      that
    plaintiffs' claim "is barred because the loss in question is
    excluded from the policy of insurance."
    Plaintiffs      and     defendants      moved   for    summary      judgment.
    Plaintiffs also moved to strike Jawad's report as a net opinion.
    On January 25, 2013, the court ruled on the motions.                     The trial
    court granted plaintiffs' motion to strike Jawad's report and then
    addressed defendant's motion.
    The court then issued an oral decision, granting summary
    judgment in favor of defendants. The court found that plaintiffs'
    sole support for their argument that "hidden decay" caused the
    collapse,   was    defendants'       expert     testimony,     which     had    been
    stricken.   The court found plaintiff provided no other evidence
    that suggests the collapse was caused by decay or erosion.
    The court also rejected plaintiffs' argument to interpret the
    term 'hidden decay' to include hidden construction defects.                      The
    court found the plain meaning of the term "decay" is not the same
    as "defect."      Further, the policy's failure to define the term
    "decay" did not render it an ambiguous term.                Moreover, the court
    found that neither expert attributed the cause of the collapse to
    decay.    Instead, both experts indicated that the collapse "was
    allegedly   caused      by   defective       construction    of    the   wall   and
    foundation together with hydrostatic pressure and the property's
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    A-3454-12T3
    shallow masonry chimney foundation."            The policy provided that
    coverage will only extend to collapses due to specific listed
    sources, none of which is "soil and hydrostatic pressure."
    Finally, the court found the policy specifically provided for
    coverage of damages caused "by the use of defective material or
    methods     of   construction,   if       the   collapse   occurs    during
    construction     or   repair."    The      court   determined    that     the
    construction occurred before the collapse, and therefore, the
    collapse is not covered by the collapse provision.              This appeal
    followed.
    We apply a de novo standard of review when evaluating whether
    summary judgment was proper.     Brill, supra, 142 N.J. at 540.            As
    does the motion judge, we first decide if there is a genuine issue
    of material fact, and if none, whether the moving party is entitled
    to judgment as a matter of law.       Ibid.; Prudential Prop. Cas. Ins.
    Co. v. Boylan, 
    307 N.J. Super. 162
    , 167 (App. Div. 1998); R. 4:46-
    2(c).
    Plaintiffs argue that the wall's collapse after standing for
    so long is evidence that the wall gradually declined in strength
    over the twenty years since its construction, consistent with
    hidden decay, a covered loss.    Although the policy does not define
    "hidden decay" plaintiffs contend the court erred by interpreting
    the term too narrowly, to exclude hidden construction defects, and
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    A-3454-12T3
    by refusing to accord the plain and ordinary meaning of the term.
    Plaintiffs contend that by doing so, the judge improvidently
    decided issues of material fact, rather than restricting his
    decision to whether such issues exist.       We agree.
    II.
    We start our analysis by reference to well-settled principles
    of insurance law.   As a threshold matter, the interpretation of
    an insurance contract is a question of law, Polarome Int'l, Inc.
    v. Greenwich Ins. Co., 
    404 N.J. Super. 241
    , 260 (App. Div. 2008),
    certif. denied, 
    199 N.J. 133
     (2009), which "we decide independent
    of the trial court's conclusions."      Simonetti v. Selective Ins.
    Co., 
    372 N.J. Super. 421
    , 428 (App. Div. 2004).
    When   interpreting   the   contract,   we    "examine   the   plain
    language of the policy and, if the terms are clear, they 'are to
    be given their plain, ordinary meaning.'"         Pizzullo v. N.J. Mfrs.
    Ins. Co., 
    196 N.J. 251
    , 270 (2008) (quoting Zacarias v. Allstate
    Ins. Co., 
    168 N.J. 590
    , 595 (2001)).    However, where an ambiguity
    exists, it must be resolved against the insurer. DiOrio v. New
    Jersey Manufacturers Ins. Company, 
    79 N.J. 257
    , 269 (1979).
    If the controlling language of the policy will support two
    meanings, one favorable to the insurer and one favorable to the
    insured, the interpretation supporting coverage will be applied.
    Corcoran v. Hartford Fire Ins. Co., 
    132 N.J. Super. 234
    , 243 (App.
    8
    A-3454-12T3
    Div. 1975).      Yet, an insurance policy is not ambiguous merely
    because two conflicting interpretations have been offered by the
    litigants.    Rosario v. Haywood, 
    351 N.J. Super. 521
    , 530-531 (App.
    Div. 2002) (citing Powell v. Alemaz, Inc., 
    335 N.J. Super. 33
    , 44
    (App. Div. 2000).          A genuine ambiguity exists when the "phrasing
    of the policy is so confusing that the average policyholder cannot
    make out the boundaries of coverage."              Lee v. General Accident
    Ins. Co., 
    337 N.J. Super. 509
    , 513 (App. Div. 2001).
    Even if a particular phrase or term is capable of being
    interpreted in the manner sought by the insurer, "where another
    interpretation favorable to the insured reasonably can be made
    that construction must be applied." Ellmex Constr. Co., Inc. v.
    Republic Ins. Co., 
    202 N.J. Super. 195
    , 204 (App. Div. 1985),
    certif. denied, 
    103 N.J. 453
     (1986).              In this regard, coverage
    clauses     should    be    interpreted      liberally,   whereas    those    of
    exclusion    should    be     strictly    construed.   Butler   v.   Bonner    &
    Barnewall, Inc., 
    56 N.J. 567
    , 576 (1970); Ellmex Constr. Co.,
    Inc., supra, 202 N.J. Super. at 205.             Finally, our analysis also
    requires that any interpretation "fulfill the expectations of the
    parties." Passaic Valley Sewerage Com'rs v. St. Paul Fire and
    Marine Ins. Co., 
    206 N.J. 596
    , 608 (2011).
    9
    A-3454-12T3
    III.
    The question presented here is whether the basement collapse
    was caused by "hidden decay," and if so, do any policy provisions
    apply that would except or exclude coverage under the facts of
    this case.   "Section 1B – Supplemental Coverage, Paragraph 2"
    provides coverage in the event of a collapse, and reads
    Coverage is extended to cover the collapse of
    a building or any structural part of a
    building that ensues only as a consequences
    of the following:
    . . . .
    B.   Hidden decay, unless such decay is known
    to an insured prior to the collapse.
    . . . .
    F.   Use of defective material or methods of
    construction or repair if the collapse occurs
    during the construction or repair.
    [(Italicized in the original).]
    The policy does not define "hidden defects" or "hidden decay."
    Plaintiffs argue the term "hidden decay," given its "plain
    and ordinary meaning, encompasses the cause of the collapse.
    Merriam-Webster's Dictionary1 defines "decay" as follows:
    1)   to decline from a sound or prosperous
    condition
    1
    MERRIAM     WEBSTER     DICTIONARY,     http://www.merriam-
    webster.com/dictionary/decay. (Last visited September 12, 2014.)
    10
    A-3454-12T3
    2)   to decrease usually gradually in size,
    quantity, activity, or force
    3)      to fall into ruin
    4)   to     decline     in    health,        strength,    or
    vigor
    5)      to undergo decomposition
    Our courts endorse the use of dictionaries or thesauruses to
    determine the ordinary meaning of words in insurance policies.
    E.g., Boddy v. Cigna Prop. & Cas. Cos., 
    334 N.J. Super. 649
    , 657
    (App. Div. 2000) (explaining that a thesaurus can help a court to
    ascertain     the    ordinary     meaning     of    a     word).      Because     the
    Merriam-Webster      definition     for     decay   suggested        by   plaintiffs
    encompasses a gradual decline in strength, the court should also
    define hidden decay as a gradual decline in strength to give it
    its ordinary meaning.      Longobardi v. Chubb Ins. Co., 
    121 N.J. 530
    ,
    537 (1990).
    This   approach     comports    with     our       principle    of   construing
    insurance contracts according to the reasonable expectations of
    the insured.        As we explained in Bromfeld v. Harleysville Ins.
    Co., 
    298 N.J. Super. 62
     (App. Div. 1997), a trial court should
    consider the reasonable expectations of the insured in determining
    coverage.     Id. at 78.    This is so even if the court finds that a
    policy does not specifically insure the loss.                  Ibid.       The court
    should also consider "whether the reasonable expectations of the
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    A-3454-12T3
    insureds is that their homeowner's policy covers them for such a
    catastrophe."      Ibid.    Arguably, plaintiffs could have reasonably
    expected that their homeowner's insurance policy would cover a
    gradual decline in strength of their basement wall, followed by
    its sudden collapse, after it stood for over twenty years.
    A   careful    review    of     the    record   indicates    support   for
    plaintiffs' claim that a gradual decline in strength within the
    walls, or "hidden decay" caused the loss.              Viewing the evidence
    in the light most favorable to plaintiffs, it suggests that the
    collapsed wall gradually declined in strength.               The basement was
    constructed approximately twenty years before the wall collapsed.
    Pierce opined that the wall's collapse was caused by a "lateral
    bending failure due to excessive horizontal loads."               He explained
    that "excessive loading caused lateral displacement of the sister
    wall, which undermined the original shallow masonry foundation."
    The   trial    court    found   that    because   the   expert   evidence
    established that the wall did not collapse during construction,
    even though improper construction methods were used years earlier,
    the loss was excluded from coverage, consequently no genuine issue
    of material fact existed.          We disagree with that premise.
    In Bromfeld, we considered a homeowner's insurance policy
    containing identical language to the one at bar.                 Additionally,
    the facts of that case are strikingly similar to the facts in the
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    A-3454-12T3
    present case.       There, the plaintiffs-insureds discovered that
    their basement wall had collapsed after a rainstorm that occurred
    while seven inches of snow covered the ground. Bromfeld, supra,
    298 N.J. Super. at 65. Plaintiffs retained an expert who testified
    in his deposition that:
    [T]he wall collapsed due to the additional
    loads applied eccentrically to the foundation
    wall due to the installation of the wood deck
    combined with the unusually high snow/ice
    loads coupled with wind. The wall collapsed
    catastrophically due to the lack of any
    available tensile bond strength of the
    interior shell of the masonry.
    [Ibid.]
    The plaintiffs' expert also prepared a report that further
    explained how the recent addition of a deck, which caught the
    snow, magnified existing structural problems with the basement
    wall, causing it to collapse.                Id. at 65-66.     In sum, the
    plaintiffs' expert opined that the basement collapsed for two
    reasons: (1) "improper construction methods," Id. at 71; and (2)
    "the recent construction of a deck [that] transmitted the weight
    of   ice   and   snow   onto   the   house   frame   immediately   above   the
    foundation, and that pressure upon the exterior face of the wall."
    Id. at 73.
    As in the case at bar, defendants in Bromfeld argued that the
    policy did not provide coverage because the collapse was caused
    by improper construction of the deck.            Ibid.    In relevant part,
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    A-3454-12T3
    we rejected that argument, explaining that, "if the actual collapse
    was caused by the weight of ice or snow, the [snow collapse
    provision] would appear to cover plaintiffs."             We explained that
    the actual cause of loss constituted a jury question.              Ibid.
    By analogy, here, the actual cause of loss could have been
    covered, as hidden decay, or it could have been a loss specifically
    excluded from coverage, improper construction methods.             Following
    the rationale in Bromfeld, the fact that plaintiffs' basement wall
    was built using improper construction methods twenty years ago
    should not have ended the inquiry as to the existence of a genuine
    issue of material fact.
    While   plaintiffs'   theory   and      interpretation   of    the    term
    "hidden decay" may not fall squarely within the covered collapses
    of a building, it also does not fall within any exclusion or
    exceptions to a peril insured against.          Thus, if the collapse was
    due to poor or defective construction methods used to construct
    the basement foundation wall system combined with the factor of
    twenty years of hydrostatic pressure and excessive loads upon the
    improperly supported foundation walls, then plaintiffs may be
    covered.
    "The    natural   assumption   of   a    homeowner   when   he   or    she
    purchases a homeowner's policy is to assume that he or she is
    covered by a comprehensive policy that will protect him or her
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    A-3454-12T3
    from an unexpected event, such as a basement collapse."          Ibid. at
    74; see Campbell v. Norfolk & Dedham Mut. Fire, 
    682 A.2d 933
     (R.I.
    1996) (finding a material issue of fact as to whether collapse of
    portion of basement wall was covered under homeowner's policy
    based upon ambiguity of material terms employed in homeowner's
    policy, where ordinary purchaser of policy could have reasonably
    understood its provisions as insuring against such collapse, even
    if exclusion required that any loss to foundation result from
    complete collapse of building).
    Certainly,   a   reasonable   jury   could   infer   from   Pierce's
    testimony that the continuous hydrostatic pressure upon the soil
    around the home caused the wall to collapse at its weak point,
    where the prior construction joined the masonry chimney to the
    shallow foundation wall.     The jury could also conclude that the
    wall gradually weakened or decayed before collapsing.
    We agree with our dissenting colleague that "one cannot force
    a square peg in a round hole;" however, because the term "hidden
    decay" was not defined in defendant's policy, it represents neither
    a square peg nor a round hole. By not defining the term, defendant
    failed to seize the opportunity to clearly and precisely delineate
    the parameters of this coverage.    The effect of the motion judge's
    decision was to write a lesser policy than the one plaintiffs
    purchased.
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    A-3454-12T3
    Moreover, we note the motion judge did not address plaintiff's
    reasonable expectation argument.       "The fundamental principle of
    insurance    law   is   to   fulfill   the   objectively   reasonable
    expectations of the parties."     Werner Industries, Inc. v. First
    State Ins. Co., 
    112 N.J. 30
    , 35-36 (1988).     Our Supreme Court has
    described the general rule of construction in searching for the
    reasonable expectations of the insured as follows:
    [I]nsurance policies are complex contracts of
    adhesion, prepared by the insurer, not subject
    to negotiation, in the case of the average
    person, as to terms and provisions and quite
    unintelligible to the insured even were he to
    attempt   to   read   and   understand   their
    unfamiliar and technical language and awkward
    and unclear arrangement . . . . We have
    stressed, among other things, the aim that
    average purchasers of insurance are entitled
    to the broad measure of protection necessary
    to fulfill their reasonable expectations; that
    it is the insurer's burden to obtain, through
    its    representatives,     all    information
    pertinent to the risk and the desired coverage
    before the contract is issued; and that it is
    likewise its obligation to make policy
    provisions, especially those relating to
    coverage, exclusions and vital conditions,
    plain, clear and prominent to the lay[person].
    [Harr v. Allstate Ins. Co., 
    54 N.J. 287
    , 303-
    304 (1969).]
    Absent unusual circumstances not present here, we cannot imagine
    a homeowner, who has purchased homeowners insurance, who would not
    expect the policy to cover a basement collapse.       See Bromfield,
    supra, 298 N.J. Super. at 74.
    16
    A-3454-12T3
    As noted, where the insured's loss can be viewed in two ways,
    basic principles of insurance law instruct us to interpret coverage
    provisions   broadly,    to    construe   exclusions   and   limitations
    narrowly, and require that we view this loss in the manner that
    brings it within the policy's coverage.        E.g., Progressive Cas.
    Ins. Co. v. Hurley, 
    166 N.J. 260
    , 272-74 (2001) (citation omitted).
    And to the extent the policy terms at issue here are ambiguous,
    long-accepted principles of interpretation applicable to insurance
    contracts require us to construe this policy language against the
    drafter, in favor of the insured, and in accordance with the
    insured's reasonable expectations. See, e.g., Gibson, supra, 158
    N.J. at 669-71.    The evidence, as viewed at summary judgment,
    should be construed in favor of coverage under the terms of the
    policy.   A genuine issue of material fact is presented as to the
    cause of the collapse and the application of the insurance policy.
    As there is a bonafide dispute as to the cause of the
    collapse, that issue must be resolved by a jury. Simonetti, supra,
    372 N.J. Super. at 432 (finding factual question existed as to
    whether rainstorm caused some or all of damage to plaintiffs' home
    and stating that issues of causation are for jury to resolve).
    Thereafter, it will be up to the trial court to interpret the
    policy, and, if necessary, the reasonable expectations of the
    insureds (plaintiffs).        Bromfeld, supra, 298 N.J. Super. at 79.
    17
    A-3454-12T3
    Accordingly, we reverse the grant of summary judgment in favor of
    defendants and remand for further proceedings consistent with this
    opinion.
    Reversed and remanded.   We do not retain jurisdiction.
    18
    A-3454-12T3
    __________________________________________
    SAPP-PETERSON, P.J.A.D., dissenting
    There is no ambiguity in the terms of the commercial dwelling
    policy issued to plaintiffs.   As such, defendants properly denied
    plaintiffs' claim for first party insurance benefits arising out
    of a basement wall collapse. I respectfully dissent, substantially
    for the reasons expressed by Judge David Francis Bauman in his
    January 25, 2013 oral opinion. I add the following brief comments.
    Judge Bauman reasoned, "the plain meaning of the term 'decay'
    is not the same as the plain meaning of the term 'defect.'"
    Plaintiffs' expert, Michael Pierce opined:
    [T]he cause of the collapse was a lateral
    bending failure due to excessive horizontal
    loads. The original, shallow foundation wall,
    the footing of the adjacent chimney, and
    retained soil below the shallow wall, applied
    a surcharge loading to the sister wall. The
    excessive loading caused lateral displacement
    of the sister wall, which undermined the
    original shallow masonry foundation.
    When later deposed, Pierce explained that "this foundation
    wall had hidden defects that would not have been immediately
    obvious to somebody doing an inspection inside the basement prior
    to the collapse." He identified the hidden defects as the "shallow
    exterior," meaning "the crawl space foundation.   He expressed:
    If in fact it was originally constructed
    as a crawl space, it would have had a shallow
    exterior foundation wall that only went down
    to possibly below frost depth. I suspect that
    a basement was constructed at this house at a
    later time, and instead of extending the
    outside foundation wall to the bottom level
    of the basement floor, they simply constructed
    a sister wall on the interior side of the
    exterior wall. So the exterior wall was not
    supported at the base of the foundation wall
    that would be the basement foundation wall.
    He opined further that this manner of construction "certainly
    would not be the proper way of constructing a basement foundation
    wall system" and testified there were "excessive horizontal loads
    [coming]   from   soil   pressure    on   the   wall     in   addition    to   the
    surcharge load from the chimney."
    Neither in his expert report nor during his deposition did
    Pierce attribute the cause of the collapse to "decay" much less
    "hidden    decay."      Moreover,   the   opinion    on    the   cause    of   the
    building's collapse as expressed by defendants' expert, whose
    report,    plaintiffs    successfully     moved     to    bar,   also    did   not
    attribute the building's collapse to "hidden decay."                A "defect"
    connotes imperfection from the outset, while "decay" connotes a
    decline from a condition that was originally sound.                 One cannot
    force a square peg in a round hole.
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