Stephens v. New Hampshire Ins. Co.

• Decision Date: 01 November 1968
• Docket Number: No. 10168,10168
• Citation: 92 Idaho 537,447 P.2d 14
• Parties: L. E. STEPHENS, Plaintiff-Respondent, v. NEW HAMPSHIRE INSURANCE COMPANY, a corporation, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 14

447 P.2d 14

92 Idaho 537

L. E. STEPHENS, Plaintiff-Respondent, v. NEW HAMPSHIRE INSURANCE COMPANY, a corporation, Defendant-Appellant.

No. 10168.

Supreme Court of Idaho.

Nov. 1, 1968.

Albaugh, Bloem, Smith & Pike, Idaho Falls, for appellant.

Holden, Holden & Kidwell, Idaho Falls, for respondent.

SMITH, Chief Justice.

Respondent (plaintiff) brought this action for recovery of damages to his potato cellar, the damages having been caused by an alleged windstorm; such damages were covered by a policy of insurance issued by appellant (defendant). The policy afforded coverage for 'loss by windstorm.' Appellant resisted recovery on the ground that the loss was the proximate result of structural deficiency in the potato cellar, not caused by the wind on the day in question.

Respondent's potato cellar is located on his property some 15 miles northeast of Pocatello, Idaho. It was built by respondent, and insured by appellant, during the year 1961. It was an 'A' construction type cellar, oriented in a north-south direction, approximately 360 feet long and 40 feet wide. The roof had rafters or trusses in the form of an 'A,' with vertical supports throughout the length of the structure. Rough lumber sheeting was nailed to the rafters diagonally at about a 45 degree angle for about 100 feet on the north end and about 100 feet on the south end; the sheeting was applied horizontally over about 160 feet in the middle portion of the structure.

Although no architect had been employed, the testimony of the contractor who built this and other cellars of the same type, and of an expert witness, was the architects are not normally consulted for the construction of potato cellars. Their testimony indicates that respondent's particular type of cellar was of standard construction as regards plans, materials and workmanship. The testimony also shows that similar cellars had collapsed, with no reasons given therefor.

During the morning of January 8, 1966, several minutes after the doors of the cellar were opened, the middle portion of the roof collapsed. Appellant contended that this was due to the improper use of the horizontal sheeting on that interior portion of the roof, and not as a result of wind in the area.

There is no wind recording station in the immediate area of the cellar, the nearest one being the station situate at or near Pocatello. On that day the Pocatello station recorded the strongest gust of wind at 36 miles per hour. Experts testified that winds of that velocity occurred several times a year, but that wind velocities could vary considerably even at distances of only five miles. Testimony of those at the site of the cellar indicated that a strong and gusty wind was blowing on January 8, 1966. Testimony also indicated that opening the doors at one end of the cellar could increase the wind force on the cellar by one and one-half times.

Respondent's expert witness, Mr. McMasters, testified that the pitch of the roof and type of sheeting used were of standard construction for potato cellars of the type here involved, and that in his opinion the fall of the roof was due to the gusty wind blowing on January 8, 1966.

Appellant's expert witness, a civil engineer, testified that in his opinion the roof collapsed due to the faulty construction, particularly as regards the use of green lumber and horizontal sheeting in the construction of the part of the cellar which collapsed. However, prior to the date of collapse (5 years after the insurance became effective) appellant had never inspected the cellar, although it had an inspector stationed in Salt Lake City, Utah.

Appellant, at the close of respondent's case, moved for an involuntary dismissal, which motion the trial court denied. Following verdict for respondent, the court denied appellant's motion for judgment notwithstanding the verdict. The court thereupon entered judgment on the verdict in favor of respondent and against appellant in the total sum of $10,833.57. Appellant perfected an appeal from the judgment and from the order denying motion for a judgment notwithstanding the verdict or for a new trial.

Appellant, by its assignments of error, questions whether the trial court correctly instructed the jury (Instruction No. 9) as to the definition of the term 'windstorm,' within the purview of appellant's policy of insurance, ¹ inasmuch as the policy does not define the term. Such instruction reads as follows:

'INSTRUCTION NO. 9

'You are instructed that any wind that is of such extraordinary force and violence as to thereby injuriously disturb the ordinary condition of the things insured, is tumultuous in character, and is to be deemed a windstorm within the purview of the policy of insurance, in absence of a provision therein to the contrary.'

The principal issue appellant raises is whether there was sufficient evidence adduced to establish that at the time of the cellar's collapse, there was a 'windstorm' within the meaning of that term, as applied to casualty insurance coverage. To determine this issue it is necessary first to decide what constitutes a 'windstorm' for insurance purposes. Appellant contends that windstorm insurance provides coverage only if the premises are in a reasonable state of repair.

The question presented appears to be one of first impression in this state. It thus becomes necessary to consult the decisional law of other jurisdictions in the premises. The Supreme Court of Alabama decided this question in Great American Insurance Co. v. Railroad Furniture Salvage of Mobile, Inc., 276 Ala. 394, 162 So.2d 488 (1964). That decision, well supported by decisional law of other states, contains the following:

'(W)here there are no limiting terms, 'windstorm' in a policy of insurance has been defined by other courts in general as being a wind of such tumultuous force and sufficient velocity as to proximately cause injury to the insured's property. Albert Lea Ice & Fuel Co. v. United States Fire Ins. Co., 239 Minn. 198, 58 N.W.2d 614; Adams Apple Products Corp. v. National Union Fire Ins. Co., 170 Pa.Super. 269, 85 A.2d 702; Fidelity-Phenix Fire Ins. Co. v. Board of Education of Town of Rosedale, 201 Okl. 250, 204 P.2d 982; Lunn v. Indiana Lumbermen's Mut. Ins. Co., 184 Tenn. 584, 201 S.W.2d 978, 171 A.L.R. 259; Fireman's Ins. Co. of Newark, N.J. v. Weatherman (Tex.Civ.App.), 193 S.W.2d 247; Roach-Strayhan-Holland Post No. 20, etc. v. Continental Ins. Co., 237 La. 973, 112 So.2d 680; Travelers Indem. Co. v. Wilkes County, 102 Ga.App. 362, 116 S.E.2d 314; Metropolitan Ice Cream Co. v. Union Mut. Fire Ins. Co., (Mo.App.) 210 S.W.2d 700; Gerhard v. Travelers Fire Ins. Co., 246 Wis. 625, 18 N.W.2d 336.

'As stated by the Wisconsin court in the Gerhard case, supra:

'Any other view would work an imposition upon the insured. If defendant wishes to adopt some scale which establishes the velocity of wind necessary for a windstorm, or if it desires to limit its liability beyond the point that we have indicated, it should incorporate its porposed standard in the policy by clear terms and such ambiguities as are left in this policy should be resolved against it.'

'In rejecting the 'reasonable state of repair' condition included in the definition of windstorm coverage, the Supreme Court of Mississippi, in New Hampshire Fire Ins. Co. v. Kochton Plywood & Veneer Co., 242 Miss. 169, 134 So.2d 735, pointed out that the insurer:

'* * * had the right to examine these buildings before they wrote the insurance and accepted the premium on the policies, and if they had examined the buildings and found they were not substantial they could have declined to write the insurance and have avoided the consequences of this loss.'

'We conclude that the concept of 'windstorm' as expressed in the opinions of a majority of the courts of our sister states, which omit the element of the structural condition of the insured building, to be the sounder view, and adhere to it.'

It will be observed that the Alabama Court rejected the so-called 'reasonable state of repair' theory as advanced by appellant herein, such rejection again being well supported by the dicisional law of other jurisdictions.

In the absence of a clause in the insurance policy limiting coverage to those structures in a reasonable state of repair, there is no such implied...