Harrison v. Glens Falls Insurance Company

181 S.E.2d 253 (1971)

11 N.C. App. 367

Fred W. HARRISON v. GLENS FALLS INSURANCE COMPANY.

No. 718DC319.

Court of Appeals of North Carolina.

May 26, 1971.

*254 Turner & Harrison, by Fred W. Harrison, Kinston, for plaintiff-appellee.

Freeman & Edwards, by H. Jack Edwards, Goldsboro, for defendant-appellant.

BROCK, Judge.

Defendant assigns as error that the Court failed to instruct the jury that it should return a verdict for defendant if it found that the ice and snow were contributing causes of the damage because these perils were excluded from coverage under the policy. We agree.

Miller v. Insurance Association, 198 N. C. 572, 152 S.E. 684, was an action on a policy of windstorm insurance, which did not expressly exclude coverage for damage by snow, ice, etc. The plaintiff's building collapsed under the weight of snow which was deposited upon its roof by a windstorm. The Supreme Court held that it was error to charge that the windstorm must have caused the damage, unaided by the snow, in order for plaintiff to recover. The Court approved the general rule that if the cause designated in the policy is the dominant and efficient cause of the loss the right of the insured to recover will not be defeated by the fact that there were contributing causes. The Court went on to say that "[o]f course the principle enunciated in these cases has no application if liability for the contributing cause is expressly excluded by the terms of the policy."

In Wood v. Insurance Co., 245 N.C. 383, 96 S.Ed.2d 28, plaintiff sought to recover upon a policy of windstorm insurance for damage done to his building by hurricane Hazel. The policy expressly excluded coverage for loss caused by, among others, high water and overflow. Upon the evidence the jury could have found that torrential rains so weakened the foundation of the building as to render it unable to withstand the wind. In upholding a judgment for plaintiff, the Supreme Court said: "If plaintiff's loss was caused by the windstorm, the fact that the rains may have created a condition which would permit the destruction by the windstorm would not relieve defendant from liability. The policy does not exclude from its terms rains, no matter how heavy. It is the high water or overflow which would excuse defendant." [Emphasis added.] Plaintiff attempts to rely upon the language of Anderson v. Connecticut Fire Ins. Co., 231 Minn. 469, 43 N.W.2d 807 (Minn.), as quoted by our Supreme Court in Wood, supra, and particularly the following language: "It is immaterial that the damage following from the efficient and proximate cause may have been indirectly and incidentally enhanced by another cause expressly excluded from coverage." In Anderson, there was expert testimony as well as other evidence showing that the snow, which was the excluded peril, could have had no appreciable effect upon the damage, and that the structure in question was heavily and visibly damaged by the wind before the snow had fallen. Thus, the snow merely "enhanced" the damage, rather than being a contributing cause. Anderson is distinguishable from the case sub judice.

It would serve no purpose to reproduce the portion of the charge to which defendant excepts. Suffice it to say that the charge did not adequately impart to the *255 jury the law as announced in Miller and Wood, supra.

It is not necessary to discuss defendant's remaining assignments of error.

New trial.

MORRIS and HEDRICK, JJ., concur.