Wilkerson Shoe Co. v. UNDERWRITERS INSURANCE CO.

• Decision Date: 30 July 1975
• Docket Number: No. 72-C-226.,72-C-226.
• Citation: 404 F. Supp. 1051
• Parties: WILKERSON SHOE COMPANY, Plaintiff, v. UNDERWRITERS INSURANCE CO., a corporation, Defendant. UNDERWRITERS INSURANCE CO., a corporation, Third-Party Plaintiff, v. NATIONAL REALTY INVESTORS TRUST OF BOSTON, d/b/a Northland Shopping Center, et al., Third-Party Defendants.
• Court: U.S. District Court — Northern District of Oklahoma

404 F. Supp. 1051

WILKERSON SHOE COMPANY, Plaintiff, v. UNDERWRITERS INSURANCE CO., a corporation, Defendant.

UNDERWRITERS INSURANCE CO., a corporation, Third-Party Plaintiff, v. NATIONAL REALTY INVESTORS TRUST OF BOSTON, d/b/a Northland Shopping Center, et al., Third-Party Defendants.

No. 72-C-226.

United States District Court, N. D. Oklahoma, Civil Division.

July 30, 1975.

Kenney, Leritz & Reinert, St. Louis, Mo., Thomas R. Brett, Tulsa, Okl., for plaintiff.

Ralph C. Kleinschmidt, St. Louis, Mo., Alfred B. Knight, Tulsa, Okl., for defendant.

MEMORANDUM OPINION

DAUGHERTY, District Judge.

This is an action on an insurance policy. The Plaintiff operated a shoe store in Frougs Department Store situated in a separate building in the Northland Shopping Center in Tulsa, Oklahoma. The Plaintiff obtained from the Defendant a policy of insurance protecting its store against loss or damage from windstorm or lightning.¹ At about 2:00 a. m. on September 6, 1971 approximately one-half of the roof collapsed doing considerable damage to merchandise and furniture and equipment of the Plaintiff.² No one was in the building at the time and apparently no one saw the collapse. The building was approximately 200 feet by 160 feet by 20 feet high with a flat felt and tar roof with gravel covering. Plaintiff alleges herein that its loss was due to windstorm either in the form of a tornado or very high velocity winds or lightning. No evidence of loss from lightning was presented and Plaintiff's two experts testified to the effect that the building was hit by a tornado. Defendant resists Plaintiff's claim asserting that the building collapse was due to the failure of an 80 feet pre-stressed concrete beam which rested on two twenty foot concrete columns and which beam formed a part of the roof structure of the building. In this connection Defendant claims that the concrete in the area of the breaks in the center of this beam tested out only about one half of the required strength and that a heavy accumulation of rain on the roof added to the cause of the collapse on the above date. The policy does not cover loss by rain unless the building shall first sustain damage to roof or walls by the direct action of wind.

On the causation issues of windstorm or structural defect or a combination of both the case was tried to a Jury with another Judge of this Court presiding. The verdict of the Jury was for the Defendant. The presiding Judge granted a new trial and then asked the undersigned Judge to handle further proceedings in the case.

Defendant by third party practice under Rule 14, F.R.Civ.Proc. brought in the owners and constructors of the building as Third Party Defendants claiming that if it should be found liable herein to the Plaintiff that the Third Party Defendants would be liable to it for all of Plaintiff's claim against it due to their responsibility for the alleged defect in the construction of the building. By agreement of all parties, the Court under Rule 42(b) F.R.Civ.Proc. separated for trial purposes the issues presented by the Complaint and the Third Party Complaint. The parties agreed to try the case to the Court sitting without a jury.

After hearing the evidence the Court finds and concludes that the building collapsed due to a defective 80 foot prestressed concrete beam and a heavy accumulation of rain on the roof and the roof collapse was not due to windstorm, either in the form of a tornado or high velocity winds or lightning. Thus, Plaintiff's loss was not covered by Defendant's policy of insurance.

Plaintiff's evidence was that a car wash some four miles away suffered the loss of its roof which was laid over a few feet by a tornado; that the roof of a building in an apartment complex some four to five miles away was partially blown off and two other buildings in the complex received damage to brick wing type walls and that some wall and window damage was sustained in the Tulsa Civic Center Complex in downtown Tulsa some three and one half miles from Plaintiff's building. Plaintiff presented evidence that a car port in a residence near the building fell down. Plaintiff's engineers testified that the building collapsed due to tornado action as some of the walls of the building were blown outwardly which is the type of damage from a tornado due to its low pressure.

Defendant's evidence was to the effect that local weather reports did not disclose the presence of a tornado at the time involved but did report a thunderstorm; that they showed 4.05 inches of rain on September 6, 1971 with 2.22 inches thereof falling between 1:00 and 2:00 a. m. of that day. The weather reports also showed the highest wind on September 6, 1971 to be 46 miles per hour from the northeast but the time is not...