Leachman v. Northern Assur. Co. of America, WD

• Decision Date: 21 April 1987
• Docket Number: No. WD,WD
• Citation: 728 S.W.2d 307
• Parties: Patricia LEACHMAN, Appellant, v. NORTHERN ASSURANCE COMPANY OF AMERICA, Respondent. 38021.
• Court: Missouri Court of Appeals

Page 307

728 S.W.2d 307

Patricia LEACHMAN, Appellant, v.NORTHERN ASSURANCE COMPANY OF AMERICA, Respondent.

No. WD 38021.

Missouri Court of Appeals Western District.

April 21, 1987.

Ronald M. Sokol, of counsel, St. Joseph, for appellant.

Wendell E. Koerner, Jr. and Scott M. Crockett, of counsel, Brown, Douglas and Brown, St. Joseph, for respondent.

Before PRITCHARD, P.J., and MANFORD and BERREY, JJ.

PRITCHARD, Presiding Judge.

Pursuant to a jury verdict, judgment was entered against appellant for damages to her residence at 206 North Noyes Boulevard, St. Joseph, Missouri, under an "all risk" Homeowner's insurance policy issued by respondent.

Appellant's residence is located at the intersection of north-south Noyes Boulevard and east-west Francis Street.The house faces east on Noyes.Immediately to its north is an alley which slopes rather steeply from west to east, a surveyor testifying that from 26th Street two blocks west, the difference in elevation drops 68 feet down to Noyes, which also slopes downhill toward the appellant's residence.

On the evening of June 7 and early morning of June 8, 1984, there was a very heavy rain in St. Joseph.John S. Creal, appellant's expert professional engineer, testified that he had never seen anything like the rain and the flooding that resulted in the 17 years he had lived in St. Joseph.The Superintendent of Streets was at the intersection in the evening of June 7 and he could not get through because of the water covering it and "it looked like the Colorado River or something like that."Evelyn Nash, who lives to the south across Francesat 2720 described Noyes as "it was like a small river, there was water coming out like a fountain from her basement toilet stool", and her entire basement was flooded with about a foot of water.James Robertson's house, east of Noyes and on the north side of Francisat 2805, received extensive flooding and he lost the west wall of his basement.

Appellant had been attending a birthday party in her honor at her other home at 417 North Noyes where her son lived on the evening of June 7.Pursuant to a call from Richard Gregory who lived with her at 206 North Noyes, and whom she treated as an adopted son, she returned to her home in the early morning hours of June 8.On arriving, appellant found water and broken glass from the windows in the basement, shelves containing bottles of liquor along the west wall were overturned, and the piano and the furniture were standing in about 3 or 4 inches of water.Gregory testified substantially to the same observations, and both testified that there was no water in the basement area when they had coffee there on the morning of the 7th, and Gregory testified there was no dampness there during the daytime.It was raining when he returned home at about 9:00 p.m., but there was no water in the garage on the north side.When he got out of bed about midnight to use the basement bathroom, he was standing in water on the floor.He began to pick up light furniture, and then noticed that the basement window had been broken, but there was no yard debris, mud or foreign objects present.

The next morning Gregory inspected the house and found that there was broken glass in the extreme southwest window well.The ground and lawn looked good and normal, there were no gullies, ruts or debris deposited in the yard, and there was no mud or water line on the bricks of the house.A garden hose which was normally stored underneath a kitchen window, wrapped around a water pump, was found lying across the patio over by the basement window.The last time Gregory had seen the hose it was wrapped around the pump.

At about 8:00 a.m., on June 8, at appellant's request, Gregory contacted the insurance agency where he spoke to a woman and told her that there were broken windows, and that it looked like somebody had tried to break into the house and somebody had been messing with the patio door.Gregory photographed what appeared to be pry marks on the door.

Jay Vocke, the insurance adjuster, investigated the damage on June 13, 1984, accompanied by Gregory.He viewed the basement area and the broken window, which he photographed, on the west side of the house, and was taken to the garage and shown a bucket of glass, pieces of furniture and broken liquor bottles.At that time, Vocke told Gregory that there would be a problem with coverage because his description of the water entering through the window well and rolling down into the basement was surface water not covered by the policy.Vocke spoke with appellant for the first time on October 9, 1984, when he was shown the pry marks on the patio door.The two discussed the fact that John Creal, as structural engineer, had been hired by appellant to inspect the property making reports, copies of which Vocke later received.After reviewing the reports, Vocke told Gregory that they did not find anything to objectively indicate that the damage was other than from surface water.

Creal testified at trial for appellant as an expert witness.He had done inspections of the premises on September 22 and October 30, 1984.He noticed pry marks on the patio door, and visual examination outside indicated nothing whatsoever that there had been exterior flooding around the foundation level up next to the house.He had inspected a house second from the corner east of Noyes the day after the flood.He measured the difference in elevation of the water level of that house and that of the window well rim of appellant's house and found the latter to be nine inches higher.Asked to assume that muddy water comes up against a brick house similar to the one at 206 North Noyes leaving dirt or mud lines, and assuming three months had gone by, would the mud lines have faded in that time period.He answered that there would be evidence of mud lines, and when he inspected the house in September 1984, he found none.

Creal inspected the basement panelling and found that water had been standing at a depth of about 2 1/2 inches.He did not observe any mud or grease staining on the panelling indicating a sewer backup.Apparently, the broken windows had double strength glass.Creal testified that it would take 50% more water pressure to break double strength glass than single strength glass.He indicated that no water-borne debris was observed to have broken the windows and there was no indication that the standing water level or moving water level around appellant's house had been as high as the window wells.Creal was also asked to assume a heavy rainfall of 8 to 10 inches and that two windows in the window wells were broken somehow, and given these facts, would the water entering the windows yield a depth of 2 1/2 inches in the basement.He answered that it would not, but under those facts, about one-half inch of water would enter.There would not be much pressure against the back of the bookcase (where the liquor bottles were stored) so as to knock over the shelves.Creal observed the cinder block portion of the basement walls and there was no staining or other indication that water had come over the foundation and down those walls, and there was no indication of water percolating through the floor seams.

Appellant pleaded that the loss was "the result of windstorm or hail; vandalism or malicious mischief; theft or attempted theft two basement windows into the insured premises were broken; the patio door was damaged by attempted force entry and cabinet shelves containing a liquor collection were knocked over and the open windows admitted water into the basement of the home causing extensive damage to the home and its contents * * *."The answer to the petition pleaded that the damage was proximately caused by water which was specifically excluded under the policy in Section I, Exclusion 3, at page 6 thereof.Respondent's letter to appellant of August 21, 1984, denying coverage, stated that the water damage to her basement rec room and adjoining rooms was caused by flooding or surface water, and advised her that she might find the exclusion in Section I of her policy under ExclusionNo. 3., which is:

"3.Water Damage, meaning

a. Flood, surface water, waves, tidal water, overflow of a body of water, or spray from any of these, whether or not driven by wind;

b. water which backs up through sewer or drains; or

c. Water below the surface of the ground, including water which exerts pressure on, or seeps or leaks through a building, sidewalk, driveway, foundation, swimming pool or other structure."

In Point I, appellant contends that the trial court erred in giving InstructionNo. 8:

"Your verdict must be for the Defendant, if you believe: any loss Plaintiff sustained resulted directly or indirectly from water damage.

Water damage as used in this instruction means flood or surface water, or water which backs up through sewers or drains."

The point specifically complains that there was no evidence of flood or surface water backing up through sewers or drains, and thus that disjunctive submission was not supported by the evidence as required by MAI 17.02, Note on Use, No. 2, andStanfill v. City of Richmond Heights, 605 S.W.2d 501, 502(Mo.App.1979), and like cases.Although respondent's adjuster, Vocke, acknowledged that his letter denying coverage, above set forth, stated that the damage was caused by "flooding or surface water" and that it did not say anything about the water backing up through the drains, there was ample...