Sherwood Real Estate & Inv. Co. v. Old Colony Ins. Co.
| Decision Date | 13 April 1970 |
| Docket Number | No. 7919,7919 |
| Parties | SHERWOOD REAL ESTATE AND INVESTMENT COMPANY, Inc. v. OLD COLONY INSURANCE COMPANY. |
| Court | Court of Appeal of Louisiana — District of US |
Iddo Pittman, Hammond, for appellant.
Bienvenu & Culver, by Ernest L. O'Bannon, New Orleans, for appellee.
Before LANDRY, SARTAIN and ELLIS, JJ.
Plaintiff (Sherwood) appeals the judgment of the trial court rejecting its claim for the cost of repair to the roof of plaintiff's building, pursuant to a policy issued by defendant (Old Colony) insuring the structure against damage by windstorm. Plaintiff also prayed for penalties and attorney's fees predicated upon defendant's alleged arbitrary refusal to timely pay the damages sustained. The trial court rejected plaintiff's demands upon finding the loss was occasioned by the weight of water collected upon the roof of the building, a risk not covered within the policy provisions. We affirm the judgment rendered below.
Old Colony is the sole defendant named in plaintiff's petition. Defendant denies coverage and alternatively alludes to other insurance in force affecting the same property. On this basis, defendant alleges it can only be held for one-half the loss if the loss is in fact covered. Defendant did not, however, name or third party the other alleged insurer. Plaintiff maintains Old Colony is the sole insurer. By stipulation, a policy issued by Maryland Casualty Company, allegedly insuring the same property against windstorm damage, was admitted in evidence below. We note that since Old Colony did not implead or serve Maryland Casualty Company, no judgment could be rendered herein against said alleged insurer under any circumstances.
It is conceded the policy coverage is against 'direct loss by windstorm. * * *'
In addition, it is conceded the policy provides as follows:
'Water Exclusion Clause: This Company shall not be liable for loss caused by, resulting from, contributed to, or aggravated by, any of the following--(a) flood, surface water, waves, tidal water or tidal wave, overflow of streams or other bodies of water, or spray from any of the foregoing, all whether driven by wind or not; (b) water which backs up through sewers or drains; (c) water below the surface of the ground including that which exerts pressure on or flows, seeps or leaks through sidewalks, driveways, foundations, walls, basement or other floors, or through floors, windows or any other openings in such sidewalks, driveways, foundations, walls or floors unless loss by fire or explosion ensues, and this Company shall then be liable only for such ensuing loss.
'This Company shall not be liable for loss to the interior of the building or the property covered therein caused, (a) by rain, snow, sand, or dust whether driven by wind or not, unless the building 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 shall be liable for loss to the interior of the building of the property covered therein as may be caused by rain, snow, sand, or dust entering the building through openings in the roof or walls made by direct action of wind or hail or (b) by water from sprinkler equipment or other piping unless such equipment or piping be damaged as a direct result of wind or hail.'
The sole issue before the court is whether the loss falls within the above coverage or the exclusions as hereinabove set forth.
There is no dispute concerning the salient facts. The building in question measures approximately 38 100 feet. Its roof is what is known as a 'built up roof' meaning the roof is almost flat but with a slight incline to permit the run-off of water. The slop of plaintiff's building is from east to west, the water draining off at the west end of the structure. The record shows that such a roof is constructed by placing multiple layers of roofing felt over decking. Each layer of felt is then mopped heavily with either tar or bitumen, in this case bitumen being utilized. On April 14, 1967, a heavy rainstorm occurred during which the roof of plaintiff's building began to leak. When the rain subsided, it was discovered that water had collected on the roof causing a pool to form as hereinafter indicated. It is conceded the weight of the water caused the roof to leak.
Plaintiff maintains the damage is the disrect result of windstorm because during the rainstorm, accompanying winds, blowing from west to east, prevented the run-off of water thus causing the water to collect until its weight damaged the roof. Defendant maintains, however, there is no proof of wind damage as required by the policy. Alternative...
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