FINDINGS OF FACT AND CONCLUSIONS OF LAW
PENCE, Chief Judge.
Plaintiffs brought suit to require defendant National Flood Insurers Association
Plaintiffs allege that the terms of the National Flood Insurance Act (Act)
This court, however, disagrees with plaintiffs' contentions.
FINDINGS OF FACT
Plaintiffs reside in a single-family house on the north shore of Oahu. As a part of the foundation structure of their house, on the ocean side is a concrete seawall, about 17 feet high, running approximately parallel to the beach. Between the seawall and the ground floor of their house, long after the house had been built, plaintiffs had put in a patio, a flat concrete slab which simply had been poured on top of the naturally underlying sand.
This patio slab, as well as a small unimproved area of the immediately adjoining property, collapsed about November 4, 1970, after seawater had undermined the underlying and supporting sand. Plaintiffs then had a resultant hole temporarily filled and subsequently repaired the patio, at a total cost of approximately $7500. Plaintiffs claim this loss is compensable under their flood insurance policy.
At the time that the seawall was constructed, about 18 years before the patio's collapse, the footing of the seawall was laid across and upon underlying old coral ridges and upon the sand that filled the voids between the ridges. Thus there remained areas of sand below the footing which were always subject to potential erosion that might be caused by the natural movement of the waves and tidewaters at, upon and under the base of the seawall. The evidence satisfies this court that the sand which had been supporting the patio slab was
Without the original underlying sand to support the concrete slab, it was only a matter of time until the otherwise unsupported patio would collapse. The slab itself hid the erosion process from view, until its collapse.
Plaintiffs, nevertheless, contend that whether or not there was a structural defect in the seawall permitting such erosion, it was unusual wave action which caused the patio to collapse. The evidence presented, however, indicates otherwise. Even though the north shore of Oahu is generally recognized as an area of rough surf, no unusually heavy wave action occurred at about the time the patio collapsed. The highest wave during the period between November 4-6, 1970, was 4½ feet.
Moreover, no evidence was presented to show that any other beach houses along the north shore were damaged during the relevant period, nor were any flood insurance claims other than plaintiffs' thereafter filed therefor. Damages were apparently limited to plaintiffs' patio and a small adjoining segment of their neighbors' property.
This court finds that the damages of which plaintiffs complain were caused by a structural defect of the seawall and not by any unusual wave action.
CONCLUSIONS OF LAW
Based on the above findings of fact, this court concludes that the type of damage which occurred is not covered either by the Act or by the flood insurance policy issued by defendants.
In construing any insurance contract, this court recognized that such contracts are to be construed liberally in the insured's interest and strictly against the insurer,
Both the Act and the insurance policy insures against all "direct loss by flood." This is defined as "a general and temporary condition of partial or complete inundation of normally dry land areas from . . . (b) abnormally high tidal water or rising coastal waters resulting from severe storms, hurricanes, or tsunamis."
The area in which the seawall, and particularly the seawall footing, was located certainly cannot be considered "normally dry land area." Portions of the seawall were regularly submerged with rise in the tides as well as with washing of the waves against the wall.
Further, there was no evidence to show any "inundation . . . from
If more were needed, plaintiffs' losses were specifically excluded under both the Act and policy. Regulations which were issued under the Act by the Department of Housing and Urban Development specifically exclude coverage from "water or mudslide damage which results from causes on the insured's own property or within his control or from any condition which causes flooding or mudslide damage which is substantially confined to the insured premises or properties immediately adjacent thereto."
Let judgment be entered in defendants' favor.
November 4, 1970 8:00 A.M. 3 feet 2:00 P.M. 3 feet November 5, 1970 8:00 A.M. 0 feet 2:00 P.M. 0 feet November 6, 1970 8:00 A.M. 0 feet 2:00 P.M. 4½ feet
Letter from Robert R. Harvey to Cades, Schutte, Fleming and Wright, December 14, 1971 (Defendant's Exhibit D-5).