Baalmann v. FIREMEN'S INS. CO. OF NEWARK, NEW JERSEY

HANSON, J. pro tem.

*

A policy of insurance as originally issued by the defendant insurer covered the composition roof

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frame building and additions in contact therewith owned by the plaintiffs. The perils insured against at the time were only fire and lightning. The insureds, the plaintiffs herein, subsequently inquired of the insurer’s representative if the coverage on their property could be improved. He replied that it could and showed them defendants’ so-called “Broad Form” endorsement, which would increase the perils insured against to include,

inter alia,

“falling objects, including costs of removal from the premises; and land slide.” In paragraph 10 of the endorsement it is expressly provided that the insurer

shall not he liable

“(8) . . .: For Loss to Outdoor Equipment, Fences, Retaining Walls Not Constituting a Part of a Building Covered, Driveways, Walks, Lawns, Trees, Shrubs and Plants, Except as the Direct Result of the Collapse of a Building.” (Emphasis added.) Thus, there is no coverage for retaining walls not constituting a part of a building covered even though damaged by landslide, a peril insured against.

It is to be noted that the “Broad Form” insures only against loss from 21 named perils to the property covered by the original policy.

The insured premises stood on a knoll considerably higher than the street level. There were two retaining walls on the property, one located at the street level below and one further up about 15 feet in front of the main foundation supporting the house. On the night of December 22, 1955, a landslide of a part of the soil of the property occurred that damaged the retaining walls and shrubbery. The slide did not damage the dwelling itself.

The two issues before the trial court were: (1) Did the policy cover the loss; that is a question of coverage; (2) If it did, what was the measure of damages ?

The plaintiffs contend that, even though the policy provides that the insurer shall not be liable for loss to retaining walls not constituting a part of the building covered, the retaining walls were as necessary as the foundation walls under the house and should be classed as secondary foundations and hence are to be considered a part of the building itself or as “additions in contact therewith.” It is true that the policy insures not only the house but also “additions in contact therewith.” But here it is plain from the evidence that there was no direct physical contact between the house or its foundations and either of the retaining walls.