Lumbermens Mut. Cas. Co. v. Ely
Decision Date | 30 April 1969 |
Docket Number | No. 176,176 |
Citation | 253 Md. 254,252 A.2d 786 |
Parties | LUMBERMENS MUTUAL CASUALTY COMPANY v. Nathaniel J. ELY et ux. |
Court | Maryland 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.
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 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:
'(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:
.
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:
'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:
(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:
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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