Unobskey v. Continental Ins. Co.

• Decision Date: 31 January 1952
• Citation: 147 Me. 249,86 A.2d 160
• Parties: UNOBSKEY et al. v. CONTINENTAL INS. CO.
• Court: Maine Supreme Court

Page 160

86 A.2d 160

147 Me. 249

UNOBSKEY et al. v. CONTINENTAL INS. CO.

Supreme Judicial Court of Maine.

Jan. 31, 1952.

Blaisdell & Blaisdell, Ellsworth, for plaintiffs.

Berman, Berman & Wernick, Portland, Francis E. Day, Calais, for defendant.

Before MURCHIE, C. J., and THAXTER, FELLOWS, MERRILL, NULTY, and WILLIAMSON, JJ.

FELLOWS, Justice.

This case brought by Charles Unobskey and Arthur H. Unobskey both of Calais, doing business as Unobskey Brothers, against the Continental Insurance Company, comes to the Law Court from the Superior Court of Washington County for final decision on a report of the evidence. By agreement, the decision in this case is to govern twenty companion cases named by the presiding justice of the Superior Court in his order for this report to the Law Court, and now on the Washington County Superior Court docket. These companion cases were brought by these plaintiffs against twenty other insurance companies, on the same or similar policies of insurance with the same endorsements. and governed by the same facts. All twenty-one writs are dated August 14, 1950.

The principal circumstances are these: The plaintiffs Arthur H. Unobskey and Charles Unobskey purchased, through a Calais insurance agency, fire insurance under the Maine Standard Policy, which policy was in force at the time of their losses hereinafter mentioned. Attached to the policy, and made a part of it, was an extended coverage endorsement which covered other perils including 'windstorm'.

On March 9, 1950 there occurred a very severe storm with high wind and heavy rain, and during the storm an outside door leading into plaintiff's retail store was torn open and the store basement flooded with water in a few minutes. The flooding of the basement resulted in damage of more than twenty thousand dollars. It is disputed as to whether the door was forced open by force of the wind or by force of accumulated water.

The portions of the endorsements on the policy which are in question are as follows: 'The coverage of this policy is extended to include direct loss by Windstorm, Hail, Explosion, Riot, Riot Attending a Strike, Civil Commotion, Aircraft, Vehicles, and Smoke.'

'Provisions Applicable Only to Windstorm and Hail: This Company shall not be liable for loss caused directly or indirectly by (a) frost or cold weather or (b) snowstorm, tidal wave, high water or overflow, whether driven by wind or not.

'This Company shall not be liable for loss to the interior of the building or the insured property therein caused, (a) by rain, snow, sand or dust, whether driven by wind or not, unless the building insured or containing the property insured shall first sustain an actual damage to roof or walls by the direct force of wind or hail and then shall be liable for loss to the interior of the building or the insured property 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 or (b) by water from sprinkler equipment or other piping, unless such equipment or piping be damaged as a direct result of wind or hail.'

The store of the plaintiffs was on the main street of Calais. In the rear of the store was a large vacant lot used by abutting owners for parking cars as well as for other purposes. This parking lot was lower than the land and streets about it. The land area here was, therefore, a sort of bowl sloping upward from this parking lot to the adjoining land and adjacent streets. That this lot was lower than the surrounding territory, and that it was recognized that a large quantity of water was likely to accumulate during rainy weather, is demonstrated by the fact that there were many man holes and catch basins in the lot and in its near vicinity to carry off the accumulations.

In the early morning hours of March 9, 1950, a heavy wind and rainstorm occurred. There was a high wind for several hours with a heavy downpour of rain. Somewhere between 4:15 A.M. and 4:30 A.M. the outside door in the rear of plaintiff's store was torn open, and a 'river' of water went through the doorway down a flight of basement stairs, broke in an inside door leading into the basement, and in a few minutes completely flooded the large basement of the plaintiffs and damaged their stock.

The plaintiffs contend that they are entitled to recover under the extended coverage endorsement of their policy, because they say that this damage was caused by 'windstorm.' They claim that the 'rain' entered the property of the plaintiffs through an opening in the 'wall' of plaintiff's premises, which opening was caused by the direct force of wind. In other words, that the accumulated rain water entered the basement through an opening caused by the windstorm, and caused the damage complained of; that the storm was the cause and the defendant is liable for all damage that followed.

The defendant, on the other hand, contends that the damage to plaintiff's merchandise was not caused by windstorm, but was caused by pressure of water which had accumulated against the rear wall and door of the plaintiff's store, not only from the rain but from the thawing of large quantities of snow, and that the pressure of water against the rear door was the cause of the breaking in of the door and the consequent damage. The defendant also claims that the policy did not cover damage from accumulated surface water, in any event.

A brief summary of the testimony of the witnesses in the order of presentation is as follows: The testimony of Arthur Unobskey shows that he was awakened at about 4 A.M. by a terrific wind and rain storm, and he immediately called his manager, Holland, to look the store over. At 4:15 A.M. Holland reported everything in proper order and condition. At 4:30 A.M. Holland reported that the basement door had broken in and the basement was being flooded. Mr. Unobskey went to the store and found that damage to the door was a broken latch or hasp that had torn out, and permitted the door to open and the outside water to pour into the basement, breaking the inside basement door.

Edgar C. Camick, in charge of U.S. Weather Bureau in Eastport eighteen miles away, who recorded the weather conditions that morning from 1 to 5 A.M. said that the wind reached the maximum velocity of 44 miles, and for one minute at 3:17 A.M. reached 49 miles; that at 44 miles per hour it would be considered 'gale force'. Frank C. Holden, mechanical engineer, who qualified as an expert on strains and stresses through wind and water pressure, stated that a wind velocity of seventy miles per hour or 300 pounds pressure would be necessary to cause failure of this latched door, and that a depth of water of 28 1/2 inches would produce a force of 300 pounds.

Morris Holland, uncle of the plaintiffs and store manager, lived in apartment over the store, and at 4 A.M. received a call from one of the plaintiffs, went down around and looked store over. Everything in good order, until a few minutes after, or about 4:30 A.M. when he heard terrific crash and found water rushing into the basement through the broken outside door and broken inside door. The basement was very quickly filled. 'The wind was steady and pretty hard and I had to hang to building to get in.' He described outside door and sill, the sill being seven inches higher than first step. The water was then up to the sill. Frank Frost, manager of a Calais bank, lives 500 yards from Unobskey store. He heard a crashing sound before daylight. It was one of the worst windstorms he had ever seen. The wind tore off shingles. Roy L. Waite, manager of St. Croix Electric Company said that the storm caused no serious damage to power lines but caused considerable trouble through disrupting circuits, and tree branches falling and breaking wires. The snow disappeared during the night and streets were very wet. It was an unusual storm.

Byrne O'Neil, Street Commissioner, had a duty to clear catch basins, and went around at 4 A.M. in Unobskey parking space. Rear door of store was then all right. Depth of water (on slightly higher ground) at 25 feet distant from Unobskey store then about 8 inches in parking place. One and one-half hours later he saw the Unobskey door open. Some limbs of trees blown down. His own storm door...