Memorial Day along the Jersey Shore is a big deal. Many new clients and friends I have met since Superstorm Sandy have commented on how much Memorial Day Weekend means to New Jersey shore families. "Restore the Shore" efforts have many New Jersey shore areas open. Others are at least a year away from recovery.
A Memorial Day vandalism loss in New Jersey lead to the instructive case of Franklin Packaging Co. v. California Union Insurance Company.1 The facts are as follows:
At some time during the Memorial Day weekend of 1974 vandals broke into plaintiff’s warehouse and drove a “high-low truck” into a water-cooled air conditioning unit, breaking a valve which created a constant flow of water. The air conditioning system was designed to permit water to run out of a half-inch pipe into a six-inch drain connected to the city sewer system. Notwithstanding the broken valve, the water would have drained out of the building but for a blockage in the six-inch pipe below the first floor caused by a burlap bag left in a drain on the same day by codefendant and third-party defendant Harry Kook & Sons while doing plumbing work. As a result of the blockage the air conditioning water backed up, causing damage to plaintiff’s inventory.
Finding for the policyholder, the Court noted the following:
Cases in other jurisdictions have permitted recovery under similar facts. For example, in Hatley v. Truck Ins. Exchange, 261 Or. 606, 494 P.2d 426 (Sup.Ct.1971), reh. den. 261 Or. 606, 495 P.2d 1196 (Sup.Ct.1972), an exterior hose was turned on full force and aimed at plaintiff’s building, flooding the first floor. It was held that although plaintiff’s policy excluded loss caused by flood, surface water and water below the surface of the ground, plaintiff was covered because the loss was caused by vandalism, an included risk. In Cresthill Industries v. Providence Wash. Ins. Co., 53 A.D.2d 488, 385 N.Y.S.2d 797 (App.Div.1976), vandals broke into a building, stole water fixtures and left the water running. The water damaged plaintiff’s stock. Relying upon 5 Appleman, Op. cit., s 3083, the New York Appellate Division concluded that plaintiff was covered. In Fawcett House, Inc. v. Great Central Ins. Co., 280 Minn. 325, 159 N.W.2d 268 (Sup.Ct.1968), vandals broke into a building, turned off the heating system and caused damage resulting from a freeze-up of the plumbing. The policy insured against vandalism but excluded loss resulting from changes in temperature or humidity. Any change in temperature and humidity, the court said, had been caused by the vandalism, and the loss was “covered because it was directly caused by a specifically covered risk, even though indirectly and incidentally enhanced by another peril expressly excluded from coverage.
Since we are celebrating Memorial Day, I think it is only fitting to remember what we are memorializing:
Memorial Day is a United States federal holiday which occurs every year on the final Monday of May. Memorial Day is a day of remembering the men and women who died while serving in the United States Armed Forces. Formerly known as Decoration Day, it originated after the American Civil War to commemorate the Union and Confederate soldiers who died in the Civil War. By the 20th century, Memorial Day had been extended to honor all Americans who have died while in the military service.
. . .
Memorial Day is not to be confused with Veterans Day; Memorial Day is a day of remembering the men and women who died while serving, while Veterans Day celebrates the service of all U.S. military veterans, living or dead.2
Our hats off and hearts to those who gave the ultimate sacrifice for our country.
1 Franklin Packaging Co. v. California Union Ins. Co., 171 N.J. Super. 188, 190, 408 A.2d 448, 449 (App. Div. 1979).
2 Wikipedia, accessible at http://en.wikipedia.org/wiki/Memorial_day