Lumbermens Mut. Cas. Co. v. Ely

Decision Date30 April 1969
Docket NumberNo. 176,176
Citation253 Md. 254,252 A.2d 786
PartiesLUMBERMENS MUTUAL CASUALTY COMPANY v. Nathaniel J. ELY et ux.
CourtMaryland Court of Appeals

Albert D. Brault, Rockville (Brault, Scott & Brault, Rockville, on the brief), for appellant.

William J. Rowan, III, Rockville (Heeney, McAuliffe & McAuliffe, Rockville, on the brief), for appellees.

Before HAMMOND, C. J., and MARBURY, McWILLIAMS, FINAN and SMITH, JJ.

SMITH, Judge.

This is a battle between an insurance company and a homeowner as to whether or not the insurance company should pay for damages to a home under a policy insuring against windstorm.

Appellees (Ely) own a home in Montgomery County. On August 26, 1965, there was a storm. The testimony of Ely as summarized by appellant (Lumbermens) in its brief is:

'The insured, Nathaniel Ely, testified that he was in his living room at about 4:00 or 5:00 p.m. on August 26, 1965. He was standing facing the rear of his house. He observed rain driving horizontally toward the back of the house which was composed of large sections of single pane glass in six foot panels. The back wall of glass was 14 to 15 feet high in the center with exposed beams on the ceiling and came down from the center on either side to about nine feet at the ends of the wall. He then saw the exterior overhang lift and at the apex of the wall where it joined the roof, he saw a space of daylight between 1/2 and 1 inch appear. As soon as this 'gust was over' the roof settled back again. He further said water came in at the same time through this opening. He had no leakage age prior to that time. The rear wall also seemed to buckle under the wind, but not in the middle, rather at the outer edges.'

The trial judge directed a verdict for Ely. He was about to leave with the jury the assessment of damages when Lumbermens stipulated to an assessment of damages in the amount of $1925.00. We shall affirm the trial court.

The policy insured against:

'3. Windstorm or hail, excluding:

'(a) loss caused directly or indirectly by frost or cold weather or ice (other than hail), snowstorm or sleet, all whether driven by wind or not;

'(b) loss to the interior of the building(s), 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 Company shall be liable for loss to the interior of the building(s) or the property covered therein as may be caused by rain, snow, sand, or dust entering the building(s) through openings in the roof or walls made by direct action of wind or hail.' (emphasis added)

Lumbermens here contends (1) the trial court erred in directing a verdict, (2) the trial court erred in ruling as a matter of law that the policy covered the accumulated effects of damage from wind as one loss, (3) the trial court erred in refusing evidence as to what constitutes sufficient velocity to do the structural damage present, (4) the policy did not cover structural alterations to prevent recurrence, (5) the trial court erred in permitting a total bill without breakdown as to repair and structural alterations, and (6) the trial court erred in refusing to grant leave to Lumbermens to reopen its case to offer evidence of the difference in these costs after it had rested its case.

We believe the questions presented may be summarized as (1) whether the trial court erred in directing a verdict, (2) whether the trial court erred in its rulings on expert testimony, (3) whether the trial court erred in the amount of the judgment entered, and (4) whether the trial court erred in refusing to permit reopening of the case by Lumbermens.

Ely was the only witness as to the occurrence of the damage. He testified as to the storm and the damage resulting therefrom, presented the evidence of his repairman and rested. His testimony as to storm damage was corroborated by the repairman who testified in response to a question asking him to describe what his inspection after the storm showed:

'Along the roof line in this area, the roof had lifted. There was approximately a 3/4 to 1 ' gap between the roof and these uprights structural members. There was also in these areas here (indicating) around the bedding, the putty that the plate glass was bedded into, it had broken loose; the edges of the glass were broken, were cracked. Not broken off, but cracked. These beams were approximately 3/4 of an inch, as I say, below the roof line. This area here on this horizontal beam was out of place, maybe 3/4 to an inch. There was no damage along this line here (indicating)'.

Lumbermens presented a witness said to be an expert in the field of structural engineering and also with reference to aerodynamics. He testified that he checked climatological reports for the Washington area as recorded at Washington National Airport for the day in question and the highest wind was 27 miles per hour, Washington National Airport being some miles removed from the Ely home in Bethesda, Maryland. He was then asked:

'Now, in your opinion, Mr. Manuccia, could the wind of 27 miles per hour have had (sic) permitted the seams to become wide enough to leak?'

An objection was interposed. After much colloquy the trial judge said:

'Well, let us get back to the pending question. It is the Court's view that as phrased, it is an objectionable question and the Court, from what it has learned about the policy of insurance, makes this ruling because of its belief that there is no exclusion under the policy for cumulative effect of wind. If the opening in question, through which the wind-driven rain ultimately came was caused by wind, and it is not incumbent upon the Plaintiffs as the Court understands the issues, to prove that the sole effect of wind, which caused the opening occurred on the particular day in question.

'The objection will be sustained on that basis.'

In Smack v. Jackson, 238 Md. 35, 207 A.2d 511 (1965) Judge Horney said for this Court:

'Under Maryland Rule 552a, a party is not entitled to a directed verdict in his favor unless the facts and circumstances are such as to permit of only one inference with regard to the issue presented.' (citing cases) Id. at 37, 207 A.2d at 512.

5 Appleman, Insurance Law and Practice, § 3142 (1941) states:

'Wind must be an efficient cause of loss in order to recover on a windstorm policy. And where the term 'direct' is used, referring to the cause of loss, it means proximate or immediate. The insured may recover if the cause designated in a windstorm policy is the efficient cause of loss, though there may have been other contributing causes.' (emphasis added)

For an annotation on the subject of windstorm damage see 'Windstorm Insurance-Causes of Loss' in 93 A.L.R.2d 145 (1964). 29A Am.Jur., Insurance, § 1329 states:

'A 'windstorm' need not have either the cyclonic or the whirling features which usually accompany tornadoes or cyclones, but it must assume the aspect of a storm-that is, an outburst of tumultuous force. In the absence of a definition or limitation in the policy, a windstorm must be taken to be a wind of sufficient violence to be capable of damaging the insured property either by its own unaided action or by projecting some object against it, assuming the property to be in a reasonable state of repair.'

It would seem that Lumbermens would have us define the term 'windstorm' in terms of measured velocity. It is noteworthy that no definition of the term occurs in its policy, although it undoubtedly has been writing policies covering that peril for many, many years with an exposure over the years of many millions of dollars.

Lumbermens calls our attention to our recent decision in American Cas. Co. v. Aetna Cas. & Surety Co., 251 Md. 677, 248 A.2d 487 (1968) wherein we said:

'In Aviation Employees Ins. Co. v. Barclay, 237 Md. 318, 206 A.2d 119 (1965), Chief Judge Prescott speaking for the Court said:

'A policy of insurance is a contract, and, in the absence of constitutional or statutory barriers, the parties thereto are at liberty to make their own agreement. It needs no citation of authority to assert that where there is ambiguity in the terms of an insurance policy, they should be liberally construed in favor of the insured and against the drafter of the policy; but this does not mean that a strained or unjustified construction of the policy is to be adopted, which disregards the plain meaning and intent of the parties.

We find no ambiguity in the pertinent terms of the policy here involved, so we shall give them their plain and ordinary meaning in determining whether the appellee was an additional insured.' Id. 323, 206 A.2d 119, 121.

'See also cases collected in 12 M.L.E., Insurance § 75.' Id. at 682, 248 A.2d at 490.

Lumbermens also contends quite strongly that expert testimony should have been permitted as to what constitutes sufficient wind velocity to do the structural damage which here occurred. In Empire State Ins. Co. v. Guerriero, 193 Md. 506, 69 A.2d 259 (1949), this Court said:

'It is of course well settled that the evidence of an expert witness is not admissible if...

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