Continental Insurance v. Kouwenhoven

Barnes, J., delivered the opinion of the Court. The appellees, Henry B. Kouwenhoven and his wife Clara F. ¹¹⁷ Kouwenhoven, as the plaintiffs below (the Kouwenhovens), sued the appellant and defendant below, the Continental Insurance Company (the Insurance Company) in the Circuit Court for Worcester County to recover losses under a Homeowner’s Policy issued by the Insurance Company to the Kouwenhovens. The action was removed to the Circuit Court for Wicomico County and was tried by a jury which rendered a verdict for $3500.00 in favor of the Kouwenhovens. From a judgment entered upon this verdict, the Insurance Company appeals.

The Kouwenhovens filed no cross-appeal. The Kouwenhovens owned and occupied a house in Worcester County on the western or mainland side of the Chincoteague Bay at a point called Figgs Landing, which is approximately one and one-half miles south of Public Landing. At that point, the Chincoteague Bay is a relatively shallow body of water between four and five miles in width and is separated from the Atlantic Ocean by a barrier reef called Assateague Island. The Kouwenhoven dwelling faces east toward the Bay and consisted of two distinct structures connected by a narrower and lower structure.

The structure on the south is referred to as the main house; the structure to the north is referred to as the guest house; and, the connecting structure is referred to as the sun porch. Extending out from the front of the property into the Bay was a pier or dock, on the eastern end of which was a bath-house. To the west of the dwelling were two other structures, a tool house approximately 100 feet away and directly to the west and a garage about 90 feet away to the northwest of the dwelling. There was a lawn between the Bay and the dwelling which was approximately 400 feet from the normal high-water line.

The dwelling contained the usual household furniture and effects. The policy at the time of the losses on March 6 and 7, 1962 had the following limits of liability: Under Section I-A, Dwelling, $25,000.00; B. Appurtenant Private Structures, $4,500.00; C. Unscheduled Personal Property, $10,000.00; D. Additional Living Expense, $5,000.00; Under Section II-E. Comprehensive Personal Liability-Each Occurrence, $25,000.00; and, F. Medical Payments-Each Person, $500.00. The annual premium was in excess of $400.00. ¹¹⁸ The policy provided in relevant part, as follows: “PERILS INSURED AGAINST. This policy with respect to Coverages A and B under Section I insures against all risks of physical loss (and under Coverage D, additional living expense resulting from such loss), except as hereinafter excluded.” Under the heading “Extensions of Coverage” appeared: “2.

Debris Removal: This policy covers expenses incurred in the removal of the property covered hereunder occasioned by loss thereto for which coverage is afforded.” Under the heading “SPECIAL EXCLUSIONS”, it was provided: “This policy does not insure against loss: “(c) caused by, resulting from, contributed to or aggravated by any of the following: (1) flood, surface water, waves, tidal water or tidal wave, overflow of streams of other bodies of water, or spray from any of the foregoing, all whether driven by wind or not.” Under “Coverage C-Unscheduled Personal Property”, and the heading “PERILS INSURED AGAINST”, the policy stated: “This policy insures under Section I against direct loss to the property covered (and additional living expense resulting from such loss or loss to the building containing the property covered) by the following perils as defined and limited herein * * *.” “3. Windstorm or hail, excluding: * * * “(b) loss to the interior of the building or the property covered therein caused by rain, snow, sand or dust, all whether driven by wind or not, unless the building(s) covered or containing the property covered shall first sustain an actual damage to roof or walls by the direct force of wind or hail and then this ¹¹⁹ Company shall be liable for loss to interior of the building(s) or the property covered therein as may be caused by rain, snow, sand or dust entering the building^) through openings in the roof or walls made by direct action of wind or hail.” The storm, which caused the losses claimed by the Kouwenhovens (and which is referred to in the testimony as the “Storm of the Century”), began on the evening of Tuesday, March 6, 1962 as a small northeaster. It gradually increased in intensity. The Kouwenhovens had been to a Shrove Tuesday church supper and returned home about 7:00 to 7:30 P.M. When they returned, it was raining and the wind was blowing so hard that Mr. Kouwenhoven had to hold his wife’s arm to keep her from being blown off the walk.

The water in the Bay at that time was rough, but there was then no exceptionally high tide. Julia Figgs, who lives in the house adjoining the Kouwenhoven property to the north, was at home with her son Alan on the evening of March 6. She testified that the “wind gradually got worse and worse and worse and worse all night long.” She watched the dock of the Kouwenhovens until approximately 9:30 to 9:45 P.M. She looked away while the bath-house was still intact but when she looked back a short time later, it had disappeared. At that time, the water level of the Bay was about up to the floorboards.

She telephoned Mr. Kouwenhoven about 10:00 P.M. and told him that the bath-house was gone. From then on the storm increased in intensity. Mrs. Figgs testified that her house shook. Mr. Kouwenhoven heard his screens rip shortly after 10:00 P.M. He could hear the bushes thrashing back and forth against the shingles with which the dwelling is covered.

On the morning of Wednesday, March 7, Mr. Kouwenhoven saw that the water from the Bay was just beginning to come over the bank and on to his lawn. He could not see the end of his dock because of the rain, but the decking, and a railing which extended along the side of the dock, were still in place as far as he could see. After eating breakfast, Mr. and Mrs. Kouwenhoven decided to leave the property. Mr. Kouwenhoven locked all the doors ¹²⁰ and then attempted to carry his wife on his back to his automobile, but the wind was so strong, he could not move.

He and Alan Figgs, who had come to their assistance, then placed Mrs. Kouwenhoven on a section of siding of decking of the pier, approximately 4x8 feet (or 6x9 feet) which had swirled around the corner of the dwelling in a “whirlpool”, and floated Mrs. Kouwenhoven some 90 feet to the automobile. At that time the water was approximately knee-deep and the waves were approximately one to two feet high. Shortly thereafter, Mrs. Figgs and her son, Alan, left their property, but experienced some difficulty because the water was up to the floorboards of her automobile with seaweed in front of the car. Later at about 1:00 P.M. Julia Figgs, George Figgs and Alan Figgs attempted to return to their property to get some clothes.

At that time the wind was blowing so hard that they could not walk from the automobile to the house. At about 4:00 P.M. that same day they returned with a tractor and were able to get into their house so that they could obtain some clothing. The following day, Thursday, March 8, George Figgs returned to his property and entered the Kouwenhoven dwelling at that time. He discovered that the east front door of the main house had been forced open.

The two panels on either side of the front door had been forced down with the outside facing up. Almost all of the panels and doors on the east side of the sun porch between the main house and the guest house had been forced in and were lying on the floor, with the outside facing up. A substantial part of the sun porch floor had collapsed. In the southeast bedroom of the guest house, a window had been forced open, and a hole had been made in the wall beneath the window.

One or more cement blocks in the foundation had been forced back under the room. Most of the furniture in the living room and dining room area had been moved back to the westernmost part of the room. None of the windows or doors in the western portion of the dwelling had been forced open. The Kouwenhovens returned to their property on Friday, March 9.

The damage to the property was extensive. Mr. Kouwenhoven described it as a “scene of devastation.” Every building and much of its contents were damaged. ¹²¹ The major part of the damage to the dwelling was confined to the living room-dining room area of the main house, the sun porch and the southeast bedroom of the guest house. Mr. Kouwenhoven, in describing the damage in these areas, stated that it was “Damaged to a focal point here, almost like a cyclone had ducked in this part—acted as though everything had been churned in together.” He contrasted the damage in these areas with the much lighter damage in those areas where there had been no opening to the wind and also with the relatively small loss in the 1933 hurricane when there were no openings to the wind. Mr. Kouwenhoven also observed that the screening on the front porch had been torn and the door leading from the porch to the main house had been forced in.

The panels on both sides of the front door had been forced in from the top and fell with the outside facing up. He observed that one of the panels was still attached to its frame at the bottom of the panel. The panels on the east side of the sun porch facing the Bay, had also been forced in from the top and also fell with the outside facing up. The door leading from the sun porch to the dining room had been broken off its hinges and a window in the southeast bedroom of the guest house had been broken in.

In the rooms where openings were made, the furniture and other household effects were severely damaged. Chairs and other pieces of furniture were broken up and scattered, a double couch was shattered and heavy furniture, including a secretary filled with books, was moved about and broken. In addition to these damages the tool house was forced off its foundation and was pushed over on its back. The main door of the garage was forced open and the lock and frame were broken.

The furniture inside the garage (which had been fixed up as living quarters) was thrown about and damaged. As has been indicated, the bath-house was entirely destroyed. Mr. Kouwenhoven testified as to each item that was damaged, the type of damage to the various structures as well as to the various items of personal property, the nature of the damage, and the amounts of loss. In the Amended Bill of Particulars filed May 18, 1964, the Kouwenhovens itemized 56 items of loss amounting in the aggregate to $8,034.70. ¹²² The trial court, over the objection of the Insurance Company, permitted Mr. Kouwenhoven to give his opinion as an expert witness that the cause of the various losses claimed by the Kouwenhovens were caused by wind.

More of the facts in regard to this alleged error will be stated when it is considered. The Insurance Company produced Dr. Herman Newstein, an eminent authority in meteorology and physics, to give the general characteristics of the storm of March 6-7 as well as comparative data in regard to the winds, both sustained and gust, occurring during Hurricane Donna in September 1960. The data indicated that from the synoptic charts the maximum sustained wind velocity in Hurricane Donna on September 12, 1960 at Public Landing was 89 miles per hour. On the morning of March 7, 1962 the maximum sustained wind velocity was 56 miles per hour.

The wind velocity for gusts was substantially higher. For example, at Salisbury during Donna the maximum sustained wind was 58 miles per hour, but gusts reached 83 miles per hour. At Public Landing during the storm of March 6-7, 1962, the maximum sustained wind was 56 miles per hour, as indicated, with a maximum gust speed of approximately 70 miles per hour. His testimony based on various hypotheses tended to indicate that the panels found with the outside facing up were forced out by water and waves rather than by wind.

In the declaration filed by the Kouwenhovens they describe the hazard insured against by the policy issued by the Insurance Company to them as “direct loss as the result of windstorm, excluding, however, loss as a result of flood, surface water, waves, tidal water, or tidal waves, overflow of streams or other bodies of water, or spray from the foregoing, all whether driven by wind or not” and then described the damages caused by the high winds which began to blow on March 6. There was no motion made to amend the declaration either during or at the end of the trial. The Insurance Company pleaded the general issue pleas in assumpsit, but no special plea. The trial judge in a comprehensive and carefully considered charge to the jury presented the case to the jury on the theory that the Kouwenhovens, as the plaintiffs, had the burden of proving by the preponderance of the evidence that the losses claimed for the dwelling and appurtenant structures were caused by windstorm and ¹²³ that to recover for the losses claimed for damages to personal property within the structures the plaintiffs must first establish that the direct force of the wind caused