The New Jersey shore has a long history of windstorms well before Superstorm Sandy. For example, in Basics of Concurrent Causation in New Jersey, Rob Trautman noted the 1955 decision of Brindley v. Firemen’s Insurance Company of Newark.1
The facts are eerily similar to many Sandy losses:
It appears that the storm on November 6, 1953 produced a ‘very high tide.’ Mr. Brindley testified that when he got to the property the morning after the storm he observed ‘that there were four houses washed out to sea’ and that ‘the boardwalk was all down in front of my house’; that the ocean was ‘very high’ but the ‘water had subsided some’; and that sand was blowing and ‘piling up in back of the house.’ He was not at the house during the day of the storm. There was no eye-witness to the direct action of the storm on the property. The witness Bloom lives in Lavallette and was there on November 6. He testified there was ‘a lot of wind and a lot of rain,’ a ‘hurricane.’ But he did not see the property in question until five days later.
Mr. Brindley testified that he purchased the building November 5, 1951 and rebuilt it practically entirely, including repairs to the roof and asbestos shingles on the outside. The day after the storm he found
‘* * * Sand blown up under the eaves. The doors were completely barred from entrance * * * the sand was blown against the doors * * * The shingles were off the roof. Water was in a pool on the floor of the bedrooms. The living room ceiling was damp * * * Water covered nearly two thirds of the living room floor. New shingles were cracked. The aerial was down. The screen door was blown off or missing * * *.’
…Over objection the witness was permitted to state that the cause of the damage was ‘the storm.’
The witness Bloom testified that he had been working on a new porch for the building ‘just prior’ to the storm and that five days after the storm he noticed ‘storm damage’; ‘shingles missing on the roof. Shingles missing on the sides of the building. Sand blown all over.’ A motion to strike as to the expression ‘blown’ was denied. He also said the floors were wet and the ceilings damp.
The witness Solan testified that the day after the storm he noticed ‘water on the floor’ in the house; that the floors were ‘warped’; and that the ceiling of the first floor had a ‘discoloration, black, a rust color.’ The antenna was ‘torn from the house,’ there were ‘some shingles blown off or some shingles missing’ on the roof and side of the house. The screen door was missing. The sand was piled six feet high in the rear of the house. Two days after the storm he observed that the ‘paint was peeling from the house.’…
Another witness testified that four weeks after the storm he observed the linoleum on the floor ‘bent up and irregular’ and ‘curled at the corners.’ He noticed that ‘the white paint’ on the exterior ‘wasn’t in very good shape.
The Court commented on the testimony and its significance:
As already noted, there is no direct evidence here to support a finding that the wind, rather than tidal or ocean water, or rain seeping through the roof or walls, caused any of the damage complained of. All of the evidence is circumstantial. Most of it is tenuous. We know from the testimony that there was unusually high water at least in the immediate vicinity of this building on the day of the storm. There is nothing shown either to support or negate the hypothesis that ocean water swept through this building. There is a distinct possibility that it did. The finder of the facts could not say, on the basis of the testimony of persons who saw the property the day after the storm or later, that the sand piled against the house, the missing storm door, or the water on the floor were not the work of high water or rain rather than wind alone. Moreover, there being no proof of any openings in the roof or walls caused by the direct action of the wind, or indeed at all, there was no evidential basis for him to conclude that the water on the floor came through such openings, as required by the policy as a predicate for liability, rather than by seepage of wind-driven rain through preexisting interstices or from a flow of high water. The mere conclusions of various witnesses as to the sand or the storm door having been ‘blown’ by the wind may not take testimonial force as probative of the cause of these conditions, since conclusions as to matters not within the direct ken of a lay witness and as to which the jury is as competent as he to form a conclusion are incompetent….
…as to the damage items for removal of sand, painting (allegedly due to sand), interior flooring and the storm door, we conclude there was no case for the trier of the facts in the district court to deal with.
We take a different view, however, as to the shingles and the antenna. There was no basis in the evidence, however, liberally taken in favor of the defendant, to support the inference of a possibility that the entire building was engulfed in ocean or tidal waters. Reading the testimony of the witnesses free of their conclusions as to cause there still remains a testimonial residue that roof shingles were off the building and the antenna broken after the storm. It is fairly inferable from the testimony of Messrs. Brindley and Bloom that the shingles and antenna were intact before the storm. We think there was a fact issue presented as to whether the damage as to these items was due exclusively to windstorm. (citations omitted)
Unlike 1955, when named peril policies were the normal form of coverage, today’s policies are all-risk policies and the insurer will bear the burden to prove the exclusion. However, it is important to recognize that Superstorm Sandy is not the first storm generating cases New Jersey courts have considered where a storm blew away and washed away structures on the Jersey Shore.
1 Brindley v. Firemen’s Ins. Co. of Newark, N.J., 35 N.J. Super. 1, 6, (App. Div.1955).