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LOWER CHESAPEAKE ASSOC. v. VALLEY FORGE INSURANCE CO.



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subject to formal revision. If you find a typographical error or
other formal error, please notify the Supreme Court of Virginia.


LOWER CHESAPEAKE ASSOC.

v.

VALLEY FORGE INSURANCE CO.


June 9, 2000

Record No. 991787

LOWER CHESAPEAKE ASSOCIATES, A LIMITED PARTNERSHIP T/A
WILLOUGHBY HARBOUR MARINA AND LITTLE BAY, LTD.

v.

VALLEY FORGE INSURANCE COMPANY

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK

Jerome James, Judge

Present: All the Justices


OPINION BY JUSTICE BARBARA MILANO KEENAN

In this appeal, we consider whether the trial court erred in
ruling that the owner of a marina was entitled to insurance
coverage under a commercial property insurance policy for damage
to the marina’s docks allegedly caused by a hurricane.

Lower Chesapeake Associates, a limited partnership trading as
Willoughby Harbour Marina, and its general partner, Little Bay,
Ltd. (collectively, Lower Chesapeake), operate a commercial
marina in Norfolk on Willoughby Bay (the marina). The marina
consists of four, seven-foot wide floating docks, designated as
Docks A, B, C, and D, which provide about 300 boat slips for
pleasure craft.

On September 6, 1996, Hurricane Fran struck the coast of North
Carolina and affected the Norfolk area with wind, rain, and a
storm surge. About five months earlier, Lower Chesapeake had
obtained a commercial property insurance policy (the policy) for
the marina from Valley Forge Insurance Company (Valley Forge).
Lower Chesapeake submitted a damage claim under the policy for
"debris removal and repair and replacement of the damaged
docks," based on damage allegedly caused by Hurricane Fran.
After Valley Forge denied coverage for the claim, Lower
Chesapeake brought this breach of contract action seeking, among
other things, an award of compensatory damages in the amount of
$1.2 million.

At a bench trial, James Ripley, Jr., the marina’s dock master,
testified that all four docks were damaged during Hurricane Fran
as a result of wind blowing against the boats moored at the
marina. Ripley stated that some of the lines securing the moored
boats broke, and that the boats repeatedly collided with the
short finger piers that project from the main docks. He also
explained that many of the boat lines were tied to cleats that
were affixed to the deck boards. The wind caused boats to draw
against the lines and the cleats, causing the deck boards to
"pull up."

Ripley testified that the waves during Hurricane Fran were
insignificant and did not cause damage to the docks, but he
agreed that the moored boats were "pitching" during the
hurricane as a result of the wind and the waves. He also
acknowledged that he had told an insurance investigator soon
after the hurricane that wind caused the wave action that damaged
the docks.

Ripley explained that the floating docks were comprised of
separate sections linked together by joints constructed of metal
brackets and a type of flexible plastic or rubber. He stated that
before Hurricane Fran struck, the marina had experienced problems
involving broken joints, and that additional joints had broken
during a "nor-easter" storm in March 1996 (the March
storm), prior to the effective date of the policy.

Whenever a joint broke, marina personnel routinely repaired or
"patched" it by replacing the flexible joint with a
rigid connection between the dock sections. These rigid
connections were made by nailing or bolting boards across the top
of the deck or onto the stringers, the horizontal support beams
under the deck, at the location of a broken joint. Similar
repairs were made to the connections between the finger piers and
the main docks. Many of these repairs "gave way" during
Hurricane Fran.

The marina also had a floating wooden breakwater located
between the docks and the entrance to the bay, which served to
shelter the docks. Ripley explained that many sections of the
breakwater had broken away during the March storm and had not
been replaced before Hurricane Fran struck.

Lower Chesapeake had obtained an estimate of $194,000 to make
the permanent repairs necessitated by the March storm, but had
not made those repairs before Hurricane Fran struck. Ripley
described in detail the damage sustained by each section of each
dock during Hurricane Fran, referring to numerous photographs
that were admitted into evidence. The damage to all four docks
included loose and missing deck boards, displaced pilings,
overturned utility pedestals, broken deck joints, and missing
finger piers. Ripley testified that Dock C "gave way"
at its "dogleg" angle when wind pushed a moored boat
against the dock. He acknowledged that the marina continued to
use all of Docks A and B, and most of Docks C and D after the
hurricane, without replacing any part of the docks.

Robert Layton, whose home is adjacent to the marina, testified
that he went to the marina during Hurricane Fran to help secure
the boats. He saw cleats, planks, and utility pedestals pull from
the dock decking, and observed finger piers break loose from the
docks after some of the boats hit against the docks. Layton
stated that Hurricane Fran did not cause "significant"
waves, and that "for a hurricane event, it was a relatively
flat occurrence."

Michael Whitt testified that he rented a boat slip on Dock D
of the marina from March 1995 until after Hurricane Fran struck.
He stated that he had complained to Ripley about the poor
condition of the docks and the breakwater every week during the
boating season. Whenever the wind exceeded 20 to 30 miles per
hour, the cleats to which the boats were tied pulled from the
deck boards because the deck wood was rotten.

Whitt testified that there had been numerous "Band-Aid
fixes" made to the docks, such as boards being nailed or
bolted over rotted dock joints and finger pier connections. He
also explained that he frequently nailed boards across the
decking near the cleats he was using in order to keep the cleats
from "popping up," but that the deck wood was so rotten
that these repair attempts were usually unsuccessful. Whitt
stated that sections of the breakwater would "break loose
during any type of storm that produced a good wind," and
that some disconnected sections frequently floated loose in the
water. He also testified that Dock C "broke in half" at
its "dogleg" angle during Hurricane Fran.

James W. Smith qualified as an expert witness and rendered
opinions on the damage to the docks and the estimation of repair
and replacement costs. After Hurricane Fran, Smith inspected the
marina’s damage and estimated the cost of repairing all four
docks. He concluded that 80% of Dock C and 88% of Dock D had
sustained "considerable damage," and that the least
expensive means of repairing these docks was to replace them
completely. Smith also testified that about 40% of Dock B and 20%
of Dock A were damaged and required replacement.

Smith’s total assessment of the replacement cost for all four
docks was about $1.3 million. He acknowledged, however, that he
could not determine whether some of the damage he observed after
Hurricane Fran had been caused by the earlier March storm. He
also explained that he had not distinguished between storm damage
and damage caused by rot or poor maintenance.

Jesse Herman Brown, Jr., also testified as an expert witness
and rendered opinions on the damage to the docks and the
estimation of repair and replacement costs. He examined the
marina about a month after Hurricane Fran and concluded that the
structural framework of Docks C and D had deteriorated to the
point that these docks could not be repaired. Brown stated that
this deterioration occurred over a period of years, and that the
repairs made by marina personnel to the dock joints and finger
pier connections were "[v]ery temporary, and
dangerous."

Brown estimated a cost of about $991,000 to replace Docks C
and D. He explained that he could not state the percentage of
this cost attributable to the repair of damage caused by the
hurricane, and that most of the damage he observed was caused by
general deterioration and wear.

Richard Potts, a forensic civil engineer, qualified as an
expert witness on the causes of structural failure and was the
only expert to express an opinion about the cause of the storm
damage incurred during Hurricane Fran. He examined the marina’s
docks about three weeks after the hurricane and also consulted a
report on the hurricane issued by the National Oceanic and
Atmospheric Administration (NOAA). That report indicated that the
NOAA station nearest the marina recorded sustained wind speeds of
42 miles per hour, a peak gust of 63 miles per hour, and a storm
surge of two feet, six inches.

Potts explained that a storm surge is "the rise above
normal elevation of the water due to the storm," and that
this is a different phenomenon from waves or tides. Although he
had no data establishing the height of the waves at the marina
during the hurricane, he concluded that there was a high
probability that there was wave action of some degree. Potts also
explained that because large sections of the breakwater were
missing, the breakwater could not dissipate as much of the wave
energy as it was designed to do.

Potts testified that he found "excessive deterioration
[and] decay," especially on Docks C and D, which had
occurred over a period of between several months and a few years.
He stated that the pattern of damage he observed on the docks was
not consistent with damage caused by wind alone. In Potts’
opinion, the primary cause of the damage was long-term
deterioration, combined with the impact of waves and surging
water. He noted that the docks failed at the joints, and that due
to the existing deterioration, movement caused by even small
waves would have been sufficient to inflict the damage.

Potts also testified that the repairs made by marina personnel
to the docks’ joints and finger pier connections prior to the
hurricane were not effective. He stated that the purpose of
having flexible joints was to permit the floating dock sections
to move with the water without experiencing undue stress. The
temporary repairs affixing rigid connections restricted the
docks’ flexibility and, thus, reduced their ability to withstand
the stress caused by wave movement.

The Valley Forge policy issued to Lower Chesapeake, in
addition to standard provisions for commercial liability and
property insurance coverage, also contained "commercial
inland marine coverage." Included in the inland marine
coverage provisions was a form entitled "Piers, Wharfs, and
Docks Coverage Form" (dock coverage form). The relevant
portions of the dock coverage form provide:

A. COVERAGE

We will pay for "loss" to Covered Property from any
of the Covered Causes of Loss.

1. COVERED PROPERTY, as used in this Coverage Form,
means:

a. Floating or fixed piers, wharfs and docks;

b. Anchors and floats used with floating docks;

c. Covers, awnings, electrical wiring or plumbing which is
permanently fixed to the pier, wharf or dock; or

Buoys or moorings.

. . . .

3. COVERED CAUSES OF LOSS

Covered Causes of Loss means RISK OF DIRECT PHYSICAL
"LOSS" to Covered Property except those causes of
"loss" listed in the exclusions.

4. a. ADDITIONAL COVERAGE – COLLAPSE

We will pay for direct "loss" caused by or resulting
from risks of direct physical "loss" involving collapse
of all or part of a building or structure caused by one or more
of the following:

(1) Fire; lightning; windstorm; hail; explosion; smoke;
aircraft; vehicles; riot; civil commotion; vandalism; breakage of
glass; falling objects; weight of snow, ice or sleet; water
damage; all only as covered in the Coverage Form;

(2) Hidden decay;

(3) Hidden insect or vermin damage;

. . . .

We will not pay for loss or damage to the following types of
property, if otherwise covered in this Coverage Form, under items
(2), (3) . . . unless the loss or damage is a direct
result of the collapse of a building:

outdoor radio or television antennas, including their lead-in
wiring, mast or towers; awnings; gutters or down spouts; yard
fixtures; outdoor swimming pools; fences; piers, wharves and
docks; beach or diving platforms or appurtenances; retaining
walls; walks; roadways and other paved surfaces.

. . . .

b. ADDITIONAL COVERAGE – DEBRIS REMOVAL

We will pay for expenses you incur for the removal of debris
of the Covered Property, which is occasioned by a
"loss" covered by this Coverage Form.

. . . .

B. EXCLUSIONS

1. We will not pay for a "loss" caused directly or
indirectly by any of the following. Such "loss" is
excluded regardless of any other cause or event that contributes
concurrently or in any sequence to the "loss":

. . . .

e. WATER

. . . .

(4) Flood, surface water, waves, tides, tidal waves,
overflowing of any body of water, or their spray, all whether
driven by wind or not.

. . . .

3. We will not pay for a "loss" caused by or
resulting from any of the following. But if "loss" by a
Covered Cause of Loss results, we will pay for the resulting
"loss":

a. Weather conditions. But this exclusion only applies if
weather conditions contribute in any way with a cause or event
excluded in paragraph 1. above to produce the "loss";

. . . .

c. Collapse except as provided in the Additional Coverage -
Collapse section of this Coverage Form.

d. Wear and tear, marring, denting or scratching;
. . . gradual deterioration, depreciation; mechanical
breakdown; insects, vermin, rodents, birds or other animals;
corrosion, rust, dampness or dryness, . . .

. . . .

F. DEFINITIONS

"Loss" means accidental loss or damage.

After hearing the parties’ evidence, the trial court found
that part of Dock C had collapsed as a result of a
"windstorm" and "water damage" and, thus, was
covered under Section A(4)(a), "Additional Coverage -
Collapse," of the dock coverage form. The court ruled that
because part of Dock C had suffered a collapse, the policy’s
exclusions set out in Section B did not apply. However, the trial
court concluded that Docks A, B, and D had not suffered
collapses. The court found that the damage to these docks
resulted from causes excluded under Section B of the dock
coverage form. The trial court entered judgment in favor of Lower
Chesapeake for the damage to Dock C in the amount of $500,000.

Lower Chesapeake appeals from the trial court’s denial of
coverage for the damage sustained by Docks A, B, and D. Valley
Forge assigns cross-error to the trial court’s ruling that the
policy provided coverage for the damage to Dock C.

The judgment of a trial court, sitting without a jury, is
entitled to the same weight as a jury verdict and will not be set
aside unless it appears from the evidence that the judgment is
plainly wrong or without evidence to support it. Code
? 8.01-680; Willard v. Moneta Bldg. Supply, Inc.,
258 Va. 140, 149, 515 S.E.2d 277, 283 (1999); Cardinal Dev.
Co. v. Stanley Constr. Co.
, 255 Va. 300, 302, 497 S.E.2d 847,
849 (1998). The court’s factual finding that part of Dock C
sustained a collapse, while the other three docks did not, is
central to the resolution of this appeal. Lower Chesapeake argues
that the evidence established that all four docks suffered
collapses, while Valley Forge contends that none of the docks
did.

Since the term "collapse" is not defined in the
policy, the term must be given its ordinary and accepted meaning.
See Craig v. Dye, 259 Va. 533, 538, 526 S.E.2d 9,
11-12 (2000); Lumbermen’s Mut. Cas. Co. v. Keller, 249 Va.
458, 460-61, 456 S.E.2d 525, 526 (1995). An ordinary and accepted
meaning of the word "collapse" is "to break down
completely: fall apart in confused disorganization:
. . . disintegrate." Webster’s Third New
International Dictionary 443 (1993).

The trial court stated that it did not use "a dictionary
definition" of the term, but instead reviewed the
photographs of the damaged docks and the other evidence and
concluded that the damage to part of Dock C was "what the
policy meant when it says collapse." The court also stated
that it compared the photographs of the other docks to the
photographs of Dock C and concluded that only Dock C satisfied
the term "collapse" as set forth in the policy.

Despite the trial court’s statement that it did not rely on a
dictionary definition of the term "collapse," the court
properly applied the ordinary and customary meaning of that term
when reaching its conclusion. The photographs and evidence to
which the trial court referred show that all the docks lost deck
boards and finger piers, and sustained various other minor
damage, but that only Dock C suffered a complete break, which
occurred at its "dogleg" angle. A complete break of
this nature falls within the ordinary and customary meaning of
the term "collapse." Thus, the trial court’s conclusion
that only one section of Dock C had suffered a
"collapse," within the meaning of the policy term, is
not plainly wrong or without evidence to support it.

Next, we consider whether the exclusions listed in Section B
of the dock coverage form preclude coverage for the damage
sustained by Docks A, B, and D. The trial court made a factual
finding that these docks did not suffer a collapse, and that the
damage to these docks was caused by wind-driven water and gradual
deterioration, which were excluded causes under Sections
B(1)(e)(4) and B(3)(d) of the dock coverage form. Lower
Chesapeake contends, however, that even if these docks did not
suffer a "collapse," the policy covers losses sustained
to those docks because Valley Forge failed to meet its burden of
proving that this damage resulted from an excluded cause. In
response, Valley Forge asserts that the trial court correctly
found that the damage to these docks resulted, at least in part,
from excluded causes.

Under the plain terms of Section B(1), coverage is excluded
under the policy if a loss is caused "directly or
indirectly" by one of the enumerated causes or events,
"regardless of any other cause or event that contributes
concurrently or in any sequence" to the loss. The evidence
amply supports the trial court’s finding that the damage to Docks
A, B, and D resulted, at least in part, from the excluded causes
of "[f]lood, . . . waves, tides, tidal waves,
. . . all whether driven by wind or not," or from
the excluded cause of "gradual deterioration," or from
any combination of these excluded causes. Since the trial court’s
factual finding on this issue is supported by the evidence, we
will affirm that part of the judgment denying coverage under the
policy for the damage to Docks A, B, and D.[1]

We next consider whether the trial court correctly concluded
that the exclusions in Section B of the dock coverage form do not
apply to losses encompassed within the provisions of the
"Additional Coverage-Collapse" section of the form.
Lower Chesapeake contends that the exclusions in Section B do not
apply to losses resulting from a collapse, while Valley Forge
asserts an opposite interpretation of the two sections of the
policy.

Courts interpret insurance policies, like other contracts, in
accordance with the parties’ intentions as determined from the
words they have used in their contract. Floyd v. Northern Neck
Ins. Co.
, 245 Va. 153, 158, 427 S.E.2d 193, 196 (1993). The
interpretation of policy provisions presents a question of law
that we consider de novo. Craig, 259 Va. at 537,
526 S.E.2d at 11.

When an insurer drafts policy language setting forth
exclusions that limit coverage under a policy, the insurer is
required to use language that clearly and unambiguously defines
the scope of the exclusions. See S.F. v. West Am. Ins.
Co.
, 250 Va. 461, 465, 463 S.E.2d 450, 452 (1995); Granite
State Ins. Co. v. Bottoms
, 243 Va. 228, 233, 415 S.E.2d 131,
134 (1992); Smith v. Allstate Ins. Co., 241 Va. 477, 480,
403 S.E.2d 696, 697-98 (1991). If exclusionary provisions are
ambiguous, such that they may be understood in more than one way,
we will interpret the policy in a manner that provides coverage. S.F.,
250 Va. at 464, 463 S.E.2d at 452; Granite State Ins. Co.,
243 Va. at 234, 415 S.E.2d at 134; Smith, 241 Va. at 480,
403 S.E.2d at 697.

We conclude that the disputed policy language permits more
than one reasonable interpretation of the applicability of
Section B to collapse losses covered under Section A(4)(a). As
Lower Chesapeake notes, under Section B(3)(c) of the dock
coverage form, losses resulting from collapse are specifically
excluded from coverage "except as provided in the Additional
Coverage-Collapse section of the Coverage Form." Further,
the exclusions set forth in Section B are specifically referenced
in Section A(3), but Section A(4)(a) is silent regarding any such
exclusions. Based on these considerations, one reasonable
conclusion concerning the disputed policy language is that the
Section B exclusions are inapplicable to the losses covered by
Section A(4)(a).

In contrast, as Valley Forge observes, Section A(4)(a)(1)
provides coverage for losses resulting from collapse caused by
windstorm or water damage "all only as covered in the
Coverage Form." Valley Forge contends that this language
clearly subjects the collapse coverage of Section A(4)(a) to the
other terms of the dock coverage form, including the exclusions
set forth in Section B. Under these considerations, a second
reasonable conclusion that can be drawn from the disputed
language is that the Section B exclusions are applicable to the
collapse of part of Dock C.

Because these provisions of the dock coverage form are
ambiguous, we construe the policy in favor of providing coverage
and hold that the exclusions in Section B are inapplicable to the
collapse coverage of Section A(4)(a). The evidence supports the
trial court’s findings that the collapse of part of Dock C was
caused by "windstorm" or "water damage" and,
thus, that this collapse is included within the coverage
provisions of Section A(4)(a). Therefore, we will affirm the
trial court’s judgment that the policy provides coverage for
Lower Chesapeake’s loss resulting from the collapse of part of
Dock C.

Finally, Valley Forge argues that the evidence does not
support the amount of damages awarded by the trial court for the
damage sustained to Dock C. We agree. As stated above, Dock C
sustained a complete break at its "dogleg" angle. This
damage to a limited portion of Dock C was the only damage found
by the trial court to have resulted from a collapse and, thus, to
qualify for coverage under the policy.

Neither party presented evidence concerning the cost of
repairing only the collapsed portion of Dock C. Instead, James
Smith testified that it would cost $584,551 to completely replace
Dock C, plus an additional amount to pay for debris removal.
Jesse Brown testified that it would cost $991,014 to replace both
Docks C and D entirely, except for one 16-foot section of Dock C
that was salvageable. Therefore, the trial court’s award of
$500,000 in damages to Lower Chesapeake as compensation for its
loss resulting from the collapse of a limited portion of Dock C
is not supported by the evidence and must be set aside.

For these reasons, we will affirm in part, and reverse in
part, the trial court’s judgment and remand the case to the trial
court for a determination of damages owed to Lower Chesapeake as
a result of the collapse of part of Dock C.

Affirmed in part, reversed in part, and remanded.

FOOTNOTES:

[1] Lower Chesapeake also argues
that the trial court erred in denying coverage for Docks A, B,
and D because the evidence showed that the damage was caused by
decay, not by gradual deterioration and, thus, Section B(3)(d) is
inapplicable. Lower Chesapeake further contends, in essence, that
because Valley Forge failed to conduct a "loss control
survey" of the marina, as permitted by the policy, Valley
Forge has forfeited any right to assert deterioration as an
excluded cause of loss. However, the trial court based its denial
of coverage to Docks A, B, and D on a finding that the damage to
these docks was caused by deterioration and wind-driven water.
Thus, we do not address these arguments since the trial court’s
finding that wind-driven water contributed to the damage is a
sufficient reason to exclude coverage under the policy language.

 

 

 

 

 

 

 

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