Summers v. Harris
| Decision Date | 26 May 1978 |
| Docket Number | No. 76-1193,76-1193 |
| Citation | 573 F.2d 869 |
| Parties | Louis E. SUMMERS, Plaintiff-Appellee Cross-Appellant, v. Patricia Roberts HARRIS, Secretary of the United States Department of Housing and Urban Development, Defendant-Appellant Cross-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Robert E. Kopp, Marta W. Berkley, Attys., Civ. Div., Dept. of Justice, Washington, D. C., for defendant-appellant cross-appellee.
P. Albert Bienvenu, Jr., P. A. Bienvenu, Bienvenu, Foster, Ryan & O'Bannon, New Orleans, La., for National Flood Insurers Association (original defendant).
Gordon M. White, Baton Rouge, La., for plaintiff-appellee cross-appellant.
Appeals from the United States District Court for the Middle District of Louisiana.
Before CLARK and GEE, Circuit Judges, and LYNNE *, District Judge.
Louis E. Summers brought this action against the National Flood Insurers Association 1 to recover on a policy of flood insurance issued pursuant to the National Flood Insurance Act of 1968, 42 U.S.C.A. § 4001 et seq. The policy purported to cover the plaintiff's house and its contents against all direct loss by flood and showed its effective date to be April 25, 1973. The district judge, sitting without a jury, considered the only substantial issue in the case to be whether the flood damaged Summers' house before the policy was issued. He found as a matter of fact that it did not and held for Summers. On this appeal the National Flood Insurers Association attacks that finding of fact as being clearly erroneous and contends in addition that the policy was void since the flood was in progress before the policy was issued. Summers cross-appeals from the district judge's denial of attorney's fees and penalties provided by Louisiana insurance law and from his denial of prejudgment interest. 2 Agreeing with the defendant that the "loss in progress" principle prevents recovery on this policy, we reverse.
Summers' house was located in the Pointe Coupee Loop, an area of some 80,000 acres completely encircled by levees in Pointe Coupee Parish, Louisiana. Under normal conditions, water in the loop drains from north to south, the sole outlet being the Pointe Coupee Drainage Structure, which is approximately 2 1/2 miles south of Summers' house. Due to heavy rains prior to April 17, 1973, the drainage structure was opened to allow water to drain from the loop.
The Morganza Floodway, which carries flood waters from the Mississippi River to the Atchafalaya River, borders the Pointe Coupee Loop to the southeast. Early in the morning on April 17, the Morganza Control Structure was opened to allow water to flow through the Morganza Floodway. Late that afternoon it was discovered that the Pointe Coupee Drainage Structure was jammed open and could not be completely closed. Since the water level in the floodway was higher than the water level and ground level to the north, water began to back up through the Pointe Coupee Drainage Structure and into the Pointe Coupee Loop in a south to north direction. When this problem was discovered, the Morganza Control Structure was closed to allow the Pointe Coupee Drainage Structure to be closed.
The Morganza Floodway was reopened on April 18 or 19. Whether the Pointe Coupee Drainage Structure had been closed by that time was disputed at trial. One witness testified that it was closed on April 18; another witness testified that the structure was never completely closed due to a log jamming it open. In any event, there was some backflow of water and the trial judge's finding that this backflow contributed to the damage to Summers' house is not clearly erroneous.
Two gauges near the Pointe Coupee Drainage Structure showed the water level near the mouth of the loop rose approximately ten feet between April 16 and April 18. The problem begun by this backflow was compounded by severe rains in this area. Beginning on April 16 and continuing through the next several days, approximately 13 inches of rain fell in this vicinity. Between April 18 and April 25, the water level at the location of the Pointe Coupee gauges rose approximately two more feet.
On April 23 the area where Summers lived became eligible to participate in the national flood insurance program. On April 25 Summers applied for the flood insurance policy covering his residence and its contents. The evidence presented at trial was tailored to answer the question of where the water was with respect to Summers' house on April 25.
The evidence showed that Summers' house was constructed on two levels. Although the garage was attached to and located under the same roof as the rest of the house, the garage floor, which was approximately at ground level, was 27 inches below the finished floor inside the house. The outside of the house was a brick veneer which extended from the ground up, and steps led from the ground to the front door.
At trial several eyewitnesses called by Summers testified without contradiction that water was not up to the finished level on April 25. Summers testified that he visited the house on April 20. He parked his car on the road in front of his house and paddled a boat across the area of water which then stood in his front yard. The water stopped a few feet from his house and was not yet in the carport or under the house. He returned on April 28, and although the water was in the carport and up into the floor joists, it had not yet reached the finished floor. He returned again on April 30, and found the water 1/2 to 3/4 inch above the finished floor.
Several other witnesses observed Summers' house on April 24. One testified that the water was not yet touching the house; another testified that there was a little water in the garage; and still another testified that the water was six to ten inches below the floor level of the house. None of the witnesses placed the water level inside the living quarters of the house on that date.
Summers also presented an expert who was of the opinion that the flooding of Summers' house could be explained in part by the water backing up from the Pointe Coupee Drainage Structure. That expert also testified that gauge readings at the Pointe Coupee Drainage Structure would not be accurate indicators of the water level at Summers' house. Due to bottlenecks in the drainage routes, he opined that it would take several days for the water at Summers' house to reach the level recorded at the gauges near the drainage structure 2 1/2 miles away.
The expert who testified on behalf of the National Flood Insurers Association was of the opinion that the water level had equalized before April 25. Therefore, his opinion was that the gauge readings at the drainage structure were accurate indicators of the water level at Summers' house. These gauge readings suggested that the water entered the carport on April 18, reached the bottom of the floor joists on April 20, and reached the finished floor on April 24 or 25.
The trial judge considered the eyewitness testimony, together with the testimony regarding the time lag for the water level to equalize, more convincing than the reading of gauges 2 1/2 miles away from Summers' home and found as a matter of fact that the water had not reached a damaging height insofar as Summers' property was concerned by April 25. Since the plaintiff applied for flood insurance before the water reached the floor, the trial judge held as a matter of law that the damage to Summers' house was covered by the policy. By way of dicta the trial judge stated that nothing in the policy would have excluded coverage even if the water had touched the floor before the policy became effective.
Although the trial judge's findings of...
To continue reading
Request your trial
-
Carney v. White
...policy. Id. § 8.03c (citing City of Carter Lake v. Aetna Casualty & Surety Co., 604 F.2d 1052, 1058-59 (8th Cir.1979); Summers v. Harris, 573 F.2d 869 (5th Cir.1978)). In City of Carter Lake v. Aetna Casualty & Surety Co., 604 F.2d at 1059 n. 4., the court defined "substantial probability" ......
-
In re Eastern Transmission Corp.
...Plastering, 1988 WL 156829, at *5; Appalachian Ins. Co. v. Liberty Mut. Ins. Co., 676 F.2d 56, 63 (3d Cir.1982); Summers v. Harris, 573 F.2d 869, 872 (5th Cir.1978). I have previously concluded that Texas Eastern knew that it was causing some property damage by releasing hydrocarbon liquids......
-
United Technologies Corp. v. American Home Assur.
...the insured that it found contamination on its property before the insurance policy commenced. AH also relies on Summers v. Harris, 573 F.2d 869, 873 (5th Cir.1978), in which an insured was denied flood insurance coverage because the flood was in progress before the policy commenced. The fa......
-
US v. Conservation Chemical Co.
...Flood Insurers Ass'n, 399 F.Supp 1242 (E.D.Mo.1975); City of Carter Lake v. Aetna, 604 F.2d 1052 (8th Cir. 1979); Summers v. Harris, 573 F.2d 869 (5th Cir.1978); Drewett v. Aetna Cas. & Sur. Co., 539 F.2d 496 (5th Cir.1976); and United States Fid. & Guar. v. Bonitz Insulation Co., 424 So.2d......
-
Chapter 6
...Circuit: Pittston Company Ultramar America Ltd. v. Allianz Insurance Co., 124 F.3d 508 (3d Cir.1997). Fifth Circuit: Summers v. Harris, 573 F.2d 869 (5th Cir. 1978) (mere threat of loss justified application of doctrine); RLI Insurance Co. v. Maxxon Southwest, Inc., 265 F. Supp.2d 727 (N.D.......
-
CHAPTER 8
...to suggest that where damage has begun to occur, no part of the loss may be insured against. (See e.g., Summers v. Harris, (5th Cir. 1978) 573 F.2d 869, 872; Presley v. National Flood Insurers Association (E.D. Mo. 1975) 399 F. Supp. 1242.). Thus, even the footnote from which the district c......
-
CHAPTER 7 Comprehensive General Liability Exclusions for Coverage A
...Circuit: Pittston Company Ultramar America Ltd. v. Allianz Insurance Co., 124 F.3d 508 (3d Cir.1997). Fifth Circuit: Summers v. Harris, 573 F.2d 869 (5th Cir. 1978) (mere threat of loss justified application of doctrine); RLI Insurance Co. v. Maxxon Southwest, Inc., 265 F. Supp.2d 727 (N.D.......