Hughes v. Potomac Ins. Co. of District of Columbia

• Decision Date: 18 January 1962
• Court: California Court of Appeals Court of Appeals
• Parties: Walter R. HUGHES, Jr. and Iris L. Hughes, Plaintiffs and Respondents, v. The POTOMAC INSURANCE COMPANY OF The DISTRICT OF COLUMBLA, a corporation, Defendant and Appellant; The Equitable Life Assurance Soclety of the United States, Defendant and Respondent. Civ. 19605.

Page 650

18 Cal.Rptr. 650

199 Cal.App.2d 239

Walter R. HUGHES, Jr. and Iris L. Hughes, Plaintiffs and Respondents, v. The POTOMAC INSURANCE COMPANY OF The DISTRICT OF COLUMBLA, a corporation, Defendant and Appellant The Equitable Life Assurance Soclety of the United States, Defendant and Respondent.

Civ. 19605.

District Court of Appeal, First District, Division 2, California.

Jan. 18, 1962.

Rehearing Denied Feb. 13, 1962.

Hearing Denied March 14, 1962.

Bert W. Levit, Victor B. Levit, Long & Levit, San Francisco, for appellants.

Stephen McReavy, Lee H. Cliff, Hall, Henry, Oliver & McReavy, San Francisco, for respondents.

SHOEMAKER, Justice.

This is an appeal by defendant The Potomac Insurance Company of the District of Columbia, from a money judgment in favor of plaintiffs Walter R. Hughes, Jr. and Iris L. Hughes.

Plaintiffs, husband and wife, are the owners of a home in Walnut Creek, California, which they purchased in 1947. On October 1, 1956, defendant issued to plaintiffs an insurance policy wherein it insured plaintiffs against all risks of physical loss of and damage to their dwelling, appurtenant private structures, household and personal property on the premises, and further provided for additional living expenses caused by the loss of said dwelling. This policy excluded from coverage all losses caused by 'surface waters, flood waters, waves, tide or tidal wave, high water, or overflow of streams or bodies of water, all whether driven by wind or not.' The policy further provided that trees, shrubs, lawns, and plants were insured only against certain risks not here relevant.

Plaintiffs' premises are bounded to the rear and on one side by Las Trampas Creek. When plaintiffs retired on the night of March 31, 1958, their home was 30 feet from the banks of the creek. Early on the morning of April 1, 1958, a shudder and shaking were heard and felt, and practically instantaneously the earth to the rear of and partially underlying plaintiffs' house slid into the creek, leaving their home standing on the edge of and partially overhanging a newly-formed 30-foot cliff. This landslide resulted in the loss to plaintiffs of a block of earth 30 feet wide and 100 feet long, and deprived them of subjacent and lateral support essential to the stability of their house.

Plaintiffs reported their loss to defendant, and on May 1, 1958, defendant denied all liability, asserting that the landslide had been caused by risks specifically excluded by the policy. Subsequent to this denial of liability, however, plaintiffs and defendant respectively appointed appraisers to determine the amount of plaintiffs' loss. Such a procedure was provided for in the policy if the parties were unable to agree as to the cash value or amount of loss in any given case. This appraisal resulted in a determination of plaintiffs' loss and damage in the following amounts:

dwelling, including attached building and garage, $50; personal property in the dwelling, $125; trees, shrubs and lawn, $800; fences, $150; concrete walk, $105; extra living expenses, $250. The appraisers further determined, at the requiest of plaintiffs that the cost of a retaining wall and fill necessary to the support of the dwelling was $19,000.

Plaintiffs brought the instant action upon the policy, asserting that defendant had refused to comply with its contract of insurance. Plaintiffs also joined a second count for declaratory relief which they voluntarily abandoned during the course of the trial. Following a trial had without a jury, judgment was entered for plaintiffs in the amount of $18,980.53. ¹

Appellant now contends that its policy specifically excluded liability for all loss and damage caused by flood or high water, and that the evidence conclusively establishes that respondents' loss was due to one or both of these factors; hence, that the trial court erred in awarding respondents any damages whatever. The record does not bear out appellant's contention. The testimony of respondent Walter Hughes reveals that it had been raining steadily for about six weeks prior to the occurrence of the landslide. However, the water level in Las Trampas Creek was still ten feet below the top of the bank at the time of the accident. Although the water continued to rise for two days thereafter, it never attained a greater height than two feet from the top of the bank. Under such circumstances, flood waters cannot be held the cause of the slide. There is no evidence that the creek ever overflowed its banks, either before or after the accident occurred.

On the issue of 'high water,' the testimony of two expert witnesses was introduced into evidence. Respondents' witness, Mr. John Trantina, testified that in his opinion the landslide was caused by the build-up of water pressure or ground water. Mr. Trantina testified that the ground water came from two sources, rain which fell upon the ground and water which infiltrated into the soil from the stream. Eventually the absorption of so much water into the soil resulted in hydrostatic pressure which caused the soil to fail. Mr. Trantina testified that erosion from the stream itself contributed to the landslide only in the sense that it furnished some water to the soil and thus caused an increase in hydrostatic pressure.

Appellant's expert, Mr. Hugh O'Neil, was of the opinion that the large quantity and high velocity of the flow of water in the creek eroded the banks and thus caused the landslide to occur. He also testified, however, that the rain might have been a contributing factor, since it could have weakened the soil and thus allowed it to be more easily eroded by the stream.

In view of the conflicting expert testimony, there was ample evidentiary support for the trial court's finding that the landslide was caused solely by 'the soaking of the land from heavy rains with consequent hydrostatic pressure and loosening of the soil.' Even if the trial court could be deemed to have erred in finding that the landslide was in no way caused or contributed to by the water in the creek, it is difficult to see how appellant was in any way prejudiced thereby. 'It has been held that, when two causes join in causing an injury, one of which is insured against, the insured is covered by the policy * * *.' (Zimmerman v. Continental Life Ins. Co. (1929) 99 Cal.App. 723, 726, 279 P. 464, 465.) Appellant's expert conceded that continued rains might have contributed to the landslide by weakening the soil. Respondents' expert testified that the slide was due to water pressure in the soil, and he indicated that the flow of water in the stream contributed to the accident in only a minor degree. Since appellant has at no time denied coverage for losses caused by the pressure of ground water, we are satisfied that the rule of the Zimmerman case should control and that respondents' loss is not barred by the 'high water' exclusion.

Appellant calls our attention to Insurance Code, section 532, which provides as follows: 'If a peril is specially excepted in a contract of insurance and there is a loss which would not have occurred but for such peril, such loss is thereby excepted even though the immediate cause of the loss was a peril which was not excepted.' In the instant case, there was evidence from which the trial court could have concluded that the loss would have occurred even in the absence of the increased flow of the creek. Since Mr. Trantina's testimony was to the effect that the creek contributed to the slide in only a minor way, the inference logically arises that the accident would have happened even had the creek remained at a more normal level. Further, appellant has failed to show that respondents' loss would not have occurred 'but for' a peril specifically excepted under the policy. This being the factual situation, the trial court properly found that respondents were not barred by the exclusions of the policy.

Appellant next asserts that its policy insured the building structure and foundations of respondents' house, but did not insure the soil or land underneath the building. Appellant points out that the policy sets forth a $16,000 limit of liability for 'Coverage A--Dwelling.' Above the list of coverages is a reference to 'Construction of dwelling' and the word 'frame' is typed in. Appellant also refers to the 'Amendatory Endorsement' to the policy where the following provision is set forth beneath the heading 'Property and Interests Covered': 'Coverage A--Dwelling: Dwelling building described in the declarations, including its additions and extensions, architects' fees, lawns, building equipment, fixtures and outdoor equipment pertaining to the service of the premises (if the property of the owner of the dwelling), while located on the premises of the described dwelling or temporarily elsewhere, and all lumber and materials on such premises or adjuacent thereto incident to the construction, alteration or repair of such dwelling. TREES, SHRUBS, OR PLANTS ARE NOT COVERED.' Appellant contends that this endorsement specifically lists all the items to be included within 'Coverage A.' Since no mention is made of the land or soil underlying the building, appellant asserts that the 'dwelling' coverage cannot be deemed applicable to a loss of land, even if the effect of this loss is to deprive the house of its support. Appellant also cites paragraph 6, subdivision a, of the 'All Physical Loss' building endorsement, which sets forth certain maximum sums for which the insurer will be liable in replacing the damaged parts of the 'building structure.' It is appellant's position that this specific reference to 'building structure' clearly indicates that coverage was to be limited to the building alone and was not to extend to the underlying earth.

Respondents counter these arguments by pointing out that the policy itself consists of a combination Homeowners Policy B, purportedly superseded by an amendatory endorsement and enlarged...