American Nat. Bank & Trust Co. v. Aetna Insurance Co.

• Decision Date: 17 August 1971
• Docket Number: No. 18641.,18641.
• Citation: 447 F.2d 680
• Parties: AMERICAN NATIONAL BANK AND TRUST COMPANY, as Trustee under Trust Agreement, No. 11152, Plaintiff-Appellant, v. AETNA INSURANCE COMPANY, a corporation, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

447 F.2d 680 (1971)

AMERICAN NATIONAL BANK AND TRUST COMPANY, as Trustee under Trust Agreement, No. 11152, Plaintiff-Appellant, v. AETNA INSURANCE COMPANY, a corporation, et al., Defendants-Appellees.

No. 18641.

United States Court of Appeals, Seventh Circuit.

August 17, 1971.

COPYRIGHT MATERIAL OMITTED

George C. Rabens, Rabens, Formusa & Glassman, Chicago, Ill., for plaintiff-appellant.

John P. Gorman, Fredric H. Stafford, James T. Ferrini, Clausen, Hirsh, Miller & Gorman, Chicago, Ill., for defendants-appellees.

Before KNOCH, Senior Circuit Judge, and KERNER and STEVENS, Circuit Judges.

KNOCH, Senior Circuit Judge.

Plaintiff-appellant, American National Bank and Trust Company, as Trustee under Trust Agreement, No. 11152, brought suit in the District Court to recover damages of $75,000 (plus interest and attorneys' fees for vexatious delay) consequent on collapse of the roof of plaintiff's garage building in Chicago, Illinois, on January 27, 1967. Plaintiff sued the defendants-appellees, Aetna Insurance Company, a corporation; National Surety Corporation, a corporation; International Insurance Company, a corporation and Citizens Insurance Company of New Jersey, a corporation; as insurers under their several insurance policies covering the premises. After trial by jury, judgment was entered for the defendants, from which plaintiff has taken this appeal.

The policies in question provide coverage of the type designated as "fire and extended coverage." They all provided insurance against direct loss by windstorm, except as the policies each thereinafter provided. With respect only to "Windstorm and Hail", all the policies contained an express exclusion from the windstorm and hail coverage that the insurers would not be "liable for loss caused directly or indirectly by * * * snow * * * whether driven by wind or not."¹

On January 27, 1967, the date alleged in the Complaint, Chicago was in the midst of the heaviest snowfall in its history. Defendants contended that the heavy snow accumulation alone caused the collapse, or (if there was a windstorm) combined with it, so that the collapse was specifically excluded from coverage under these policies.

Expert witnesses gave conflicting views, presenting an issue of fact for the jury on the cause of the damage for which recovery was sought.

Plaintiff argues that the provisions in the policies created an ambiguity which must be resolved favorable to the plaintiff insured, under Illinois law.

Plaintiff sees such ambiguity because the policies insure the plaintiff against direct loss by windstorm and then provide that the companies shall not be liable for loss caused directly or indirectly by snow whether driven by wind or not, making no references to occurrences attributable both to covered and excluded perils.

Plaintiff cites numerous cases wherein damage was found due to possible combinations of covered and not covered perils in which the covered peril was, nevertheless, an efficient or proximate cause. We find these cases inapplicable.

We see no ambiguity in the policy provisions. Windstorm loss is covered but that coverage is subject to further provision. Losses due to snow are not just generally excluded from the policies. The policies provide, with specific reference to windstorm and hail, a specific exclusion from liability for direct loss by windstorm when snow is a direct or indirect cause. Similar wording has been found to be clear and unambiguous in Wasson v. Insurance Company of North America, 1960, 25 Ill.App.2d 35, 38, 165 N.E.2d 528; Feehrer v. Fidelity and Casualty Co., 1914, 188 Ill.App. 398; Newark Trust Co. v. Agricultural Insurance Co., 3 Cir., 1916, 237 F. 788, 792; Brindley v. Firemen's Ins. Co., 1955, 35 N.J.Super. 1, 113 A.2d 53.

Plaintiff would distinguish these cases on their facts or the nature of the proof offered at trial. However, the cases do indicate that wording such as we have in the policies before us presents no ambiguity.

The defendants contend that plaintiff is precluded from arguing in this Court any objections to jury instructions given or rejected at the trial, because of failure to comply with Rule 51, Fed.Rules of Civil Procedure² in that plaintiff's counsel did not object to specific instructions (stating distinctly the matter and grounds of such objection) making instead only general objections.

We would agree with defendants were it not for the fact that in the course of colloquy with respect to the instructions, the Trial Judge said repeatedly that plaintiff's objections had been noted for the purpose of protecting the record and that the record was protected, discouraging detailed objections by plaintiff. We have therefore considered plaintiff's objections to the instructions.

The plaintiff argues that the jurors were improperly instructed that Plaintiff could not recover unless the loss resulted solely from windstorm, rejecting plaintiff's proffered instruction that plaintiff was entitled to recover if wind was the efficient cause without which loss would not have occurred even though other causes contributed to the damage.

Plaintiff would have us draw an analogy from Bull v. Sun Life Assurance Corporation, 7 Cir., 1944, 141 F.2d 456, where the insured decedent was in the course of making his escape from a downed aircraft afloat on the ocean, in which he had been engaged as a pilot on patrol duty in the South Pacific. The downed aircraft, which was incapable of flying again without repairs, was strafed by an enemy seaplane. The policy under consideration provided that death directly or indirectly resulting from service, travel or flight in any aircraft as a passenger or otherwise, was a risk not assumed.

Judge Minton writing the opinion for the majority said (p. 457) that the Court was faced with a legal question which required construction of the contract of insurance and that it was elementary that such contracts were strictly construed against the insurance company. The majority opinion gave consideration (p. 458) to the circumstances of the time of the policy application, i. e., war was raging in Europe, our relations with Japan were strained, the United States was expanding her defense program, and the applicant for insurance was a Naval Aviation Cadet. The aviation clause was inserted in the policy but no war clause. The majority concluded that the insurer was willing to assume all risks of war not connected with service, travel, or flight in aircraft. The Court held (p. 459) that the evidence supported the view that (disengagement from the flight having taken place) death resulted directly from the strafing. The opinion held that the policy excluded the risk of "death as a result, directly or indirectly of service * * * in * * * aircraft." Death, the Court held, in this instance resulted directly from the strafing. The Court stressed the fact that the policy dealt with results not causes or contributing causes.^* However, we do not find Bull (or cases like it) helpful in this instance where the policy does exclude a loss directly or indirectly caused by snow even if windstorm is a contributing factor.

Although there was evidence of both wind and heavy snow, any damage caused by the snow, even though driven by wind was specifically eliminated by the policy. There was no question of proximate cause for the jury.

We have also examined the instructions, having in mind plaintiff's complaints of prejudice. The Court instructed the jury that the defendant insurer was entitled to the same fair and unprejudiced treatment as an individual in like circumstances.³ Plaintiff says no similar instruction was given respecting the corporate plaintiff. But the trust beneficiary testified early in the trial, told the jury of his interest in the case, and was frequently present in Court during the trial.

Plaintiff contends that repetitious instructions were given respecting its burden of proof. Actually the Court twice described the burden of proof in this specific case, once in general terms⁴ and again after reading directly from the policy,⁵ pointing out that defendants need not disprove plaintiff's claims.

A third reference to burden of proof relates only to civil cases in general and defines "preponderance of the evidence."⁶

A fourth instruction to which plaintiff points deals with a possible finding of equal probability,⁷ and the last concerns possible finding of no loss by windstorm or a loss by combination of causes.⁸ We find no oppressiveness or bias in these instructions.

Plaintiff contends that two of its proffered instructions were improperly rejected. The content of one⁹ was covered by an instruction already given. The same is partially true of the second instruction¹⁰ which also contradicts the Trial Judge's holding, with which we agree, that the policies were not ambiguous.

The plaintiff sees error in rejection of proffered testimony concerning high winds and their effect prior to the beginning of the snowstorm on January 26, 1967, the day before the roof collapse alleged in the Complaint.

Plaintiff argues that no lack of notice to defendants would have occurred because in answer to interrogatories plaintiff had referred to windstorm conditions and high winds commencing on and prior to January 24, 1967.¹¹ Defendants reply that the answer was not completely responsive as high winds alone are not a windstorm (as defined...