Samuel v. Sewerage & Water Board

181 So. 2d 243, 1965 La. App. LEXIS 3895
CourtLouisiana Court of Appeal
DecidedDecember 6, 1965
DocketNo. 1974
StatusPublished
Cited by6 cases

This text of 181 So. 2d 243 (Samuel v. Sewerage & Water Board) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Samuel v. Sewerage & Water Board, 181 So. 2d 243, 1965 La. App. LEXIS 3895 (La. Ct. App. 1965).

Opinion

REGAN, Judge.

The plaintiff, Jac PI. Samuel, filed this suit against the defendants, the Sewerage and Water Board of New Orleans, Aetna Casualty and Surety Co., Liberty Mutual Insurance Co., and Granite State Insurance Co., the insurers of his residence under standard homeowners’ policies from December, 1958, until September, 1962, endeavoring to recover the sum of $11,707.02 representing damages which he asserts were caused by the negligence of the Sewerage and Water Board in improperly filling a ditch which it dug for the purpose of laying sewer pipe on or near his property line during the month of July, 1959.

The Sewerage and Water Board pleaded the exceptions of no right or cause of action predicated upon it governmental immunity. These exceptions were initially overruled; however, the trial court later sustained them after a trial on the merits. The immunity of the Sewerage and Water Board from suits of this nature is not seriously disputed on appeal, and consequently it does not constitute an important issue herein.

The defendant insurers answered, and denied the allegations of the petition. In addition thereto, they asserted affirmatively that the homeowners’ policies issued by them to the plaintiff did not afford coverage for his loss.

Following a trial on the merits, judgment was rendered in favor of the plaintiff against Granite State Insurance Co. in the amount of $9,857.00. Plaintiff’s suit against all other defendants was dismissed. From this judgment, the plaintiff and Granite State Insurance Co. have prosecuted this appeal.1

The record reveals that the plaintiff is the owner of a two story brick veneer home located in number 1 Wren St. in the city of New Orleans. This home was erected in 1946, and was approximately eighteen years of age when the trial hereof occurred.

In the month of September, 1959, the Sewerage and Water Board replaced a sewer line along the side of the plaintiff’s residence which borders on Marconi Drive. In order to install the sewer, the Board dug a trench approximately seven to ten feet deep and four to six feet wide running the entire length of the plaintiff’s property line. Upon the completion of this section of the sewer line, the Sewerage and Water Board backfilled the excavation.

Between the months of December, 1959, and February, 1960, the plaintiff testified that he observed a definite sinking in the ground where the new sewer had been laid. In February, 1960, he complained to the Board, which dispatched a work crew to fill the depressions around the sewer line. Several months later, the soil in the area again [245]*245•subsided and the Sewerage and Water Board again filled the depressions with riv■er sand.

From this time until May, 1962, the plaintiff observed only small “bad spots” following heavy rains, and he did not feel constrained to have the Sewerage and Water Board return to engage in any additional filling operations.

In April, 1962, the plaintiff and his family departed from New Orleans on a business trip and did not return to his home until September of that year. He then noticed large cracks in the brick veneer surface of his residence, together with cracks in the plaster in the interior thereof. In addition thereto, he later learned that the flooring of the house nearest to the ditch had sunk one and one half inches as compared to a sinkage of one half inch in the ■other areas of the house.

Granite State Insurance Co. contends that the damage sustained to the plaintiff’s residence did not occur in 1962, and predicates its conviction on photographs taken in 1960 by the Sewerage and Water Board revealing the presence of some cracks in the brick veneer at that time.

On the other hand, the plaintiff concedes that some minor cracks did exist prior to September of 1962, the date when he contends that the major damage was discovered by him upon his return to his home. His testimony is substantiated to a large extent by the testimony of a soil expert, offered by Aetna Casualty Insurance Company, who related that in his opinion the damage to the plaintiff’s home was caused by a severe drought which occurred in New Orleans during the summer of 1962. According to this expert, the effect of an abrupt drop in the water table in the area of the plaintiff’s home probably caused a rather precipitous sinkage thereof during his absence. However, this expert also asserted that part of the damage to the plaintiff’s home could have been caused by the trench excavated by the Sewerage and Water Board.

All of the defendant insurers have offered several defenses to the plaintiff’s suit, and each has endeavored to prove that the loss, if any was incurred in conformity with their respective contracts, was sustained during the other’s policy period. However, the most important issue in the case, urged upon us by all three insurance companies, is whether the homeowners’ contract of insurance issued by them afforded coverage to the plaintiff for the damage which was incurred by his residence.

Each policy affords “all risk” coverage, with certain enumerated exclusions. The exclusion of pertinence herein provides that the policy does not insure against loss:

“by termites or other insects; wear and tear; deterioration; smog; smoke from agricultural smudging or industrial operations; rust; wet or dry rot; mould; mechanical breakdown; settling, cracking, shrinkage, or expansion of pavements, foundations, walls, floors, or ceilings; unless loss by fire, smoke (other than smoke from agricultural smudging or industrial operations), explosion, landslide, collapse of buildings, water damage, or glass breakage ensues, and this Company shall then be liable only for such ensuing loss;” (Italics ours)

The plaintiff has insisted from the inception of this litigation that the damage sustained to his residence constitutes a “collapse” thereof, and consequently it does not fall within the terms of the above exclusion. On the other hand, the defendant insurers assert that the plaintiff’s damage was incurred as the result of “settling, cracking, shrinkage, or expansion of pavements, foundations, walls, floors, or ceilings”. A cursory reading of the exclusion reveals that damage from these causes is not covered by the contract of insurance unless a collapse of the building ensues.

Therefore, the pertinent question posed for our consideration, as we have said, is whether the damage incurred by the plaintiff’s residence constitutes a collapse there[246]*246of so as to extricate him from the exclusion contained in all three policies.

The plaintiff relies on the rationale emanating from Anderson v. Indiana Lumbermens Mutual Insurance Company2 as authority for the conclusion that the damages sustained by him constitute a collapse of his home. The Anderson case was decided on an exception of no cause of action, in which the petition alleged the following facts:

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Bluebook (online)
181 So. 2d 243, 1965 La. App. LEXIS 3895, Counsel Stack Legal Research, https://law.counselstack.com/opinion/samuel-v-sewerage-water-board-lactapp-1965.