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Newman v. Great American Insurance Co.

Decided: February 3, 1965.

WALTER A. NEWMAN, JR., AND DAVID G. NEWMAN, PLAINTIFFS-APPELLANTS,
v.
GREAT AMERICAN INSURANCE COMPANY, DEFENDANT-RESPONDENT



Gaulkin, Foley and Lewis. The opinion of the court was delivered by Gaulkin, S.j.a.d.

Gaulkin

[86 NJSuper Page 393] Plaintiffs' beachfront summer home and its contents, located in Avalon, were destroyed on March 7, 1962 during a severe storm. Plaintiffs sued defendant for the loss upon a policy which covered "direct loss by windstorm." Defendant contended that the loss was not caused by windstorm but by the storm-tossed sea, or by the combined

action of wind and waves, for which it was not liable under its policy. The jury returned a verdict for defendant. Plaintiffs' motion for a new trial was denied and now they appeal.

The policy is a standard New Jersey fire insurance policy with "extended coverage" and "additional extended coverage" endorsements. The policy and the endorsements are lengthy and contain numerous "exclusions," "provisions" and "stipulations."

The extended coverage endorsement says:

"In consideration of the premium for this coverage as shown on the first page of this policy, and subject to provisions and stipulations (hereinafter referred to as 'provisions') herein and in the policy to which this endorsement is attached, including endorsements thereon, the coverage of this policy is extended to include direct loss by WINDSTORM, HAIL, EXPLOSION, RIOT, RIOT ATTENDING A STRIKE, CIVIL COMMOTION, AIRCRAFT, VEHICLES, AND SMOKE.

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; * * *."

The "additional extended coverage" endorsement provides:

"In consideration of an additional premium, and subject to the provisions of * * * the Extended Coverage Endorsement * * * coverage is hereby extended to include direct loss by * * *

8. Collapse of building(s) or any part thereof, including collapse caused by weight of ice, snow or sleet.

THIS COMPANY SHALL NOT BE LIABLE:

(B) As respects Perils * * * 8 * * * For loss caused directly or indirectly by * * * flood, inundation, waves, tide or tidal wave, high water, or overflow of streams or bodies of water, whether driven by wind or not."

Plaintiffs' first point is that the trial court erred in its charge to the jury and in refusing their requests to charge.

Over the objection of plaintiffs, the trial court directed the jury to answer the following questions:

"1. Was all of the damage to plaintiffs' building and household and personal property caused solely and exclusively by the direct force of the wind?

2. Was all of the damage to plaintiffs' building and household and personal property caused solely and exclusively by flood, surface water, waves, tidal water, overflow of the Atlantic Ocean or spray from any of the foregoing, whether driven by wind or not?

3. Did all of the damage to plaintiffs' building and household and personal property result from the combined, joint action of, or was it contributed to or aggravated by flood, surface water, waves, tidal water, overflow of the Atlantic Ocean, or spray from any of the foregoing, whether driven by wind or not?"

The jury answered "no" to questions 1 and 2 and "yes" to question 3.

The judge charged the jury:

"In order for the plaintiffs to recover they have the burden to show by a fair preponderance of the evidence that the damage to the building and to the household and personal property, or some portion of such damage, was caused solely and exclusively by the direct force of wind, and that such damage was not caused by and did not result from and was not contributed to or aggravated by flood, surface water, waves, tidal water or ...


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