Strubble v. United Services Auto. Assn.

• Decision Date: 20 November 1973
• Citation: 110 Cal.Rptr. 828,35 Cal.App.3d 498
• Court: California Court of Appeals Court of Appeals
• Parties: Arthur Dewey STRUBBLE, Jr., et al., Plaintiffs, Respondents and Cross-Appellants, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant, Appellant and Cross-Respondent. Civ. 40919.

Page 828

110 Cal.Rptr. 828

35 Cal.App.3d 498

Arthur Dewey STRUBBLE, Jr., et al., Plaintiffs, Respondents and Cross-Appellants, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant, Appellant and Cross-Respondent.

Civ. 40919.

Court of Appeal, Second District, Division 3, California.

Nov. 20, 1973.

Dryden, Harrington & Swartz, Raphael Cotkin and Peter Abrahams, Los Angeles, for plaintiffs, respondents and cross-appellants.

LaFollette, Johnson, Horgan & Robinson and Daren T. Johnson, North Hollywood, for defendant, appellant and cross-respondent.

COBEY, Associate Justice.

These are cross-appeals by the insured plaintiffs, Arthur and Mary Strubble, and defendant, United Services Automobile Association, the insurer, from a judgment entered under a California homeowners all-risks of physical loss insurance policy on special verdicts in favor of plaintiffs and against defendant in the total amount of $42,857.79.

Plaintiffs appeal on the sole ground that the total amount awarded them should have been $17,800.00 greater for reasons which will be explained later. Defendant appeals on the following two grounds: (1) the jury was erroneously instructed regarding the burdens of proof of the parties as to defendant's liability under the policy; (2) the evidence that plaintiffs' loss was proximately caused by an earthquake on June 14, 1967, and that the fair market value of plaintiffs' residence prior to the earthquake was $36,410.00 is insubstantial.

The Loss

In February 1960 plaintiffs purchased a very large and beautiful Mediterranean-style home with a panoramic view of the ocean for $60,000. ¹ This home was located on the cliff overlooking Malaga Cove in the City of Palos Verdes Estates. The reason for the comparatively low price was that the cliff on which the home was situated had experienced a slight landslide some months earlier that had largely destroyed a flagstone patio to the north of the house and undermined slightly its northern wing. ²

About 10:00 p.m. on June 14, 1967, an earthquake centered at Whittier, California, some 28 miles from plaintiffs' home, occurred. It was a rather small one (4.1 at Whittier and approximately 3.1 at plaintiffs' Nevertheless the next morning plaintiff Arthur Strubble noticed a crack in the brick patio on the landward side of the house. Further investigation revealed that this patio crack was in the ground itself and ran some 30 to 40 feet through various rooms of the house. Two geologists examined the crack and the other structural damage to the house nd independently concluded that another landslide under the center of the house had started. Officials of the City of Palos Verdes Estates became concerned over the safety of the house and the safety of those on the beach below in the event the entire front of the supporting cliff sloughed away.

home on the Richter Scale) and, although noticeable on the Palos Verdes Peninsula, was of moderate intensity there (perhaps 2.5 on the Mercale Scale).

Over the next few months the crack in the earth's surface widened and lengthened appreciably and a distinct downward slope toward the sea developed. The crack and the earth about it became, however, relatively stable. A spring suddenly appeared, though, on the face of the cliff in November 1967. At the urgings of representatives of both the city and defendant, plaintiffs bulldozed off the seaward top of the cliff ³ and brought in large timbers and steel beams to shore up the foundation of the house. Plaintiffs' family moved into the portion of the home away from the cliff and abandoned the seaward part of the house.

Nonetheless, following the winter rains, the landslide under the house accelerated. Plaintiffs demolished the north wing of the house completely in February and March of 1968. Plaintiffs' very extensive and expensive demolition and foundation shoring efforts proved largely unsuccessful, though, and in August 1968, after the City of Palos Verdes Estates had informally threatened to condemn the house, plaintiffs' family moved away. Perhaps one-third of the house remained. At the time of the trial of this case in January 1972 a son of the plaintiffs lived in the remainder of the house as a caretaker.

The Expert Testimony Regarding the Cause of the Loss

Because under the policy before us, earthquake (by reason of a special endorsement carrying a substantial additional premium) is an included peril and earth movement otherwise is an expressly excluded peril, the crucial factual issue in this case has always been whether the earthquake of June 14, 1967 was a proximate cause of plaintiffs' loss. Five expert witnesses testified on this issue. Two defense witnesses, Dr. Leighton, a geology professor and consultant, and Mr. Shields, a consulting engineer, both were of the opinion that the earthquake did not cause the landslide. The three engineering geologists who testified were divided in their opinions. Mr. Riccio, who examined the home and the premises for defendant just after the earthquake, could not tell whether the earthquake had caused the landslide. ⁴ Dr. Pipkin, who had done, on his hands and knees, a detailed geological study of the cliff on which plaintiffs' home stood and who had been studying the cliff's geology for over fifteen years, thought that the earthquake possibly did cause the landslide. Mr. Lockwood, who was on the property numerous times in 1967 and 1968 following the earthquake (commencing within a month thereafter) in an attempt to determine for plaintiffs if the landslide could be arrested and the home saved, was of the opinion that the earthquake was the probable cause of the landslide.

Dr. Leighton conceded that an earthquake might trigger a landslide and that an earthquake 'might be the very fine straw that broke the camel's back.' Mr. Shields testified that a 'sonic boom or an earthquake,

even of a minor intensity, could have been enough to create a jar there that might have turned it loose.' They both pointed out, though, that there was nothing in the scientific literature in the field indicating an established causal relationship generally between earthquakes and landslides. Dr. Pipkin, on the other hand, on the basis of his study of the Portuguese Bend landslide and the February 9, 1971 earthquake, opined that there was a fairly good correlation between earthquakes and landslides. He further explained that at the time of the June 1967 earthquake the cliff of silty sand and diatomaceous shale on which plaintiffs' home stood had become so unstable by reason of the subterranean water removing the slight adhesive materials and lubricating the supporting surfaces that a rather slight jar from an earthquake toward the unsupported face of the cliff could cause a landslide. ⁵

DISCUSSION

Defendant's Appeal

1. The Burden of Proving the Proximate Causation of Plaintiffs' Loss.

The trial court instructed the jurors in effect that defendant had the burden of proving to them that plaintiffs' loss was proximately caused by a peril excluded from the coverage of the policy such as earth movement, landslide, etc. In view of this instruction that defendant had to prove its nonliability under the policy, the trial court took the unusual but thoroughly logical step of directing defendant's counsel to open and close the argument of counsel to the jury on the liability issue. Plaintiffs' counsel, throughout his argument on this issue to the jury, stated at least five times, in effect, that defendant had the burden of proving to the jurors that the earthquake did not cause the landslide. Following about 3 1/2 hours of deliberation, the jury requested that the trial court again instruct it on this issue. This time the court told the jury, in effect, that the burden of establishing that plaintiffs' loss was not proximately caused by the earthquake was on defendant since defendant had to satisfy the jury by a preponderance of the evidence that plaintiffs' losses were not covered by the policy, and that earthquake was covered but that landslide was not. After about an hour of further deliberation the jury returned the special verdicts underlying the challenged judgment.

The trial court placed this admittedly unusual burden of proof on defendant, as to its liability under the policy to plaintiffs, because of the nature of the policy. The policy is an 'all-risks' policy. It is not a specific peril policy, such as a policy of fire and lightning insurance. If it were the latter type of policy and the specific peril covered by the policy had been earthquake, then ...