Vertichio v. Ennia General Insurance

20 V.I. 7, 1983 V.I. LEXIS 48
CourtSupreme Court of The Virgin Islands
DecidedAugust 17, 1983
DocketCivil No. 28/82
StatusPublished

This text of 20 V.I. 7 (Vertichio v. Ennia General Insurance) is published on Counsel Stack Legal Research, covering Supreme Court of The Virgin Islands primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vertichio v. Ennia General Insurance, 20 V.I. 7, 1983 V.I. LEXIS 48 (virginislands 1983).

Opinion

PETERSEN, Judge

MEMORANDUM OPINION INTRODUCTION

This is an action to recover under a marine insurance policy for damages caused to a vessel by shipworms. The essential facts are as follows: In early 1979 James, Gary and Robert Vertichio, doing business as Captain Ross Caribbean Lobster Co. (plaintiffs), bought a boat named the “Joe Christmas” in Virginia, and sailed it to the Virgin Islands. In both January and May 1980, while the vessel was tied up at the northeast end of the commercial pier at Gallows Bay, Christiansted, St. Croix, the lines securing the boat were removed and left slack. This caused the boat to freely bump against the dock and pound against the bottom. This contact with the dock and bottom damaged the vessel, causing water to steadily stream into the bilge. Although the bilge pumps were maintaining the water at a manageable level, it was necessary for plaintiffs to check the level every fifteen to twenty minutes after the second incident to make sure the bilge level was not so high as to get the engine parts wet. Plaintiffs notified St. Croix Marine that the boat had to be hauled out of the water and the damage fixed. Although plaintiffs repeatedly checked with St. Croix Marine and were repeatedly told that the boat would be hauled in a week or two, the vessel sat idly in the water at St. Croix Marine, waiting to be hauled, for approximately six months, from January to June 1981. During this period the vessel partially submerged three times as a result of problems with the bilge pumps, and in February 1981, plaintiffs started noticing signs of worm damage to the hull. The shipworms, known as Toredos, [11]*11were boring small holes into the ship’s hull, causing pinhole leaks. As a result of St. Croix Marine’s failure to haul the boat, plaintiffs made arrangements to bring the boat to Tortola Yacht Services in Tortola, British Virgin Islands, in the summer of 1981, where it was hauled and surveyed. The marine surveyor concluded that it would cost Nineteen Thousand Four Hundred Ninety-Seven Dollars and Sixty Cents ($19,497.60) to repair the worm damage. Plaintiffs filed a claim under their marine insurance policy issued by Ennia General Insurance Co. (defendant), which policy was effective from March 3, 1981 to March 3, 1982. The policy includes an Eleven Thousand Dollars ($11,000.00) deductible for each claim and provides, in pertinent part, as follows:

PERILS
Touching the adventures and Perils which the Underwriters are contented to bear and take upon themselves, they are of the Seas, Men-of-War, Fire, Lightning, Earthquake, Enemies, Pirates, Rovers, Assailing Thieves, Jettisons, Letters of Mart and Counter-Mart, Surprisals, Takings at Sea, Arrests, Restraints and Retainments of all Kings, Princes and Peoples, of what nation, condition or quality soever, Barratry of the Master and Mariners and of all other like Perils, Losses and Misfortunes that have or shall come to the Hurt, Detriment or Damage of the Vessel, or any part thereof, excepting, however, such of the foregoing perils as may be excluded by provisions elsewhere in the Policy or by endorsement thereon.
ADDITIONAL PERILS (INCHMAREE)
Subject to the conditions of this Policy, this insurance also covers loss of or damage to the vessel directly caused by the following: accidents in loading, discharging or handling cargo, or in bunkering; accidents in going on or off, or while on dry-docks, graving docks, ways, gridirons or pontoons; explosions on shipboard or elsewhere; breakdown of motor generators or other electrical machinery and electrical connections thereto, bursting of boilers, breakage of shafts, or any latent defect in the machinery or hull, (excluding the cost and expense of replacing or repairing the defective part); breakdown of or accidents to nuclear installations or reactors not on board the insured vessel; contact with aircraft rockets or similar missiles, or with any land conveyance; negligence of charterers and/or repairers, provided such charterers and/or repairers are not an [12]*12assured hereunder; negligence of masters, officers,, crew or pilots; provided such loss or damage has not resulted from want of due diligence by the assured, the owners or managers of the vessel, or any of them. Masters, officers, crew or pilots are not to be considered owners within the meaning of this clause should they hold shares in the vessel.

The defendant has denied coverage.

The issues presented are: Is the policy at issue an “all-risk” policy or a “specific perils” policy? Which party has the burden of proof? Was this burden of proof met? Is the loss incurred of a type that comes within the coverage provided by the policy?

DISCUSSION

I. Type of Policy

The question which is addressed here is whether the marine insurance policy at issue is an “all-risks” or a “specific perils” policy. This is a question of construction. The body of the policy determines the type of coverage. 11 Couch on Insurance 2d, §§ 43:2 at 15 and 43:82 at 59 (Rev. ed. 1982). The example cited in Couch, supra, § 43:1 at 11-12, is almost exactly the same as the policy at issue, and is considered to be a “covered” or “specific” perils policy. This, in addition to a number of cases where policies quite similar, if not precisely the same, have been determined not to be all-risks policies but rather were held to extend coverage only to losses occurring as a direct result of a peril enumerated in the policy, makes it very clear that the policy under examination by this Court is a “specific perils” policy. See, e.g., Darien Bank v. Travelers Indemnity Co., 654 F.2d 1015 (5th Cir.1981); Vining v. Security Ins. Co. of New Haven, 252 So.2d 754 (La. Ct. App. 1971); Pacific Dredging Co. v. Hurley, 397 P.2d 819 (Wash. 1964). The court in Pacific Dredging Co., supra, went on to state: “We emphasize that the phrase ‘and all other like Perils, Losses and Misfortunes,’ which words were used in the present insurance policy [as is the case herein], simply extends coverage to similar perils. Similar clauses in other insurance policies have never been interpreted to convert this coverage clause into an all-risk coverage clause.” Id. at 825 (citing 11 Couch on Insurance 2d., §§ 43:3-5 (Rev. ed. 1982)). The Pacific court further held that the wording of the Inchmaree clause included in the specific perils policy, which was very similar to the Inchmaree clause in the policy at bench, “leaves no doubt that it also is intended to be an enumerated perils clause ....” Pacific, supra, at 826. The policy at issue here is, therefore, clearly a specific perils policy.

[13]*13II. Burden of Proof

The burden of proof shifts depending on whether the policy is an all-risks or specific perils policy. When a specific perils policy is involved, the burden of proof is on the insured to show that the loss incurred is covered by a specifically named peril in the policy. Darien Bank v. Travelers Indemnity Co., 654 F.2d 1015, 1019 (5th Cir. 1981); Vining v. Security Insurance Co. of New Haven, 252 So.2d 754, 756 (La. Ct. App. 1971); Pacific Dredging Co. v. Harley,

Related

Ronald Goodman v. Fireman's Fund Insurance Company
600 F.2d 1040 (Fourth Circuit, 1979)
Pacific Dredging Co. v. Hurley
397 P.2d 819 (Washington Supreme Court, 1964)
Texaco, Inc. v. Universal Marine, Inc.
400 F. Supp. 311 (E.D. Louisiana, 1975)
Henjes v. Aetna Ins. Co.
132 F.2d 715 (Second Circuit, 1943)
Chicago S. S. Lines v. United States Lloyds, Inc.
12 F.2d 733 (Seventh Circuit, 1926)
Joseph Navigation Corp. v. Chester
411 F. Supp. 496 (S.D. New York, 1975)
Walker v. Travelers Indemnity Company
289 So. 2d 864 (Louisiana Court of Appeal, 1974)
Wigle v. Aetna Casualty and Surety Company
177 F. Supp. 932 (E.D. Michigan, 1959)
Carter Tug Service, Inc. v. Home Insurance Company
345 F. Supp. 1193 (S.D. Illinois, 1971)

Cite This Page — Counsel Stack

Bluebook (online)
20 V.I. 7, 1983 V.I. LEXIS 48, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vertichio-v-ennia-general-insurance-virginislands-1983.