# Appendix — West v. Harris > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2246%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1979 - **Citation:** 440 U.S. 946 ## Text - Qereme Court, U. m FILED DEC go 1978 In the Supreme Court of the Huitea tengo OCTOBER TERM, APPENDIX VOLUME No —%8-1001 CARL D. WEST, Petitioner Versus PATRICIA ROBERTS HARRIS, SECRETARY OF THE UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Respondent. and ANDREW J. DAIGLE, Petitioner Versus PATRICIA ROBERTS HARRIS, SECRETARY OF THE UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT LEOPOLD B. BABIN WIMBISH & BABIN 240 Barrow Street P.O. Box 406 Houma, Louisiana 70361 (504) 868-1073 Attorney for Petitioners _ SS OC A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555 i TABLE OF CONTENTS PAGE Iho 2s ou bs 5ead ona ek bee us as A-1-26 ee ere area eer ee ee A-27-32b co Ce ee ee A-33-35 NI Ce Ceo delhi prey eos A-36-68 ES 6.5 a5 oaks Ce whe oe eee A-69-105 ery a aie pan ds sb wie awe eee os A-106-119 I Me Cia vg. erates wna Sle A-120-135 ergy cg cite SME eke A-136-140 PD eau bc bro sw aie GRE eee nea A-141-143 K SO pe ge me Oe BOR A-1l APPENDIX A WEST v. HARRIS, 573 F2d 873 (1978) Carl D. WEST, Plaintiff- Appellee-Cross-Appellant, v. Patricia Roberts HARRIS, Secretary of the United States Department of Housing and Urban Development, Defendant-Appellant-Cross- Appellee. Andrew J. DAIGLE, Plaintiff- Appellee-Cross-Appellant, Vv. Patricia Roberts HARRIS, Secretary of the United States Department of Housing and Urban Development, Defendant-Appellant-Cross- Appellee. No. 76-2531 United States Court of Appeals, Fifth Circuit May 26, 1978 Rehearing Denied July 28, 1978 Insureds brought action against insurers to recover under policies issued under the National Flood Insurance Act. The United States District Court for the Western District of A-2 Louisiana, Edwin F. Hunter, Jr., J., entered judgment on the verdicts in favor of insureds and insurers appealed. Insureds filed cross appeal seeking awards of penalties, attorneys fees, and prejudgment interest. The Court of Appeals, Charles Clark, Circuit Judge, held that: (1) evidence demonstrated that, with the exception of water damage suffered by one insured, damage to insureds’ homes was due to earth move- ment which was not a “mudslide’” and thus was due to a perii which was excluded from coverage under the policies; (2) whether the jurisdiction of federal court was based on the grant of jurisdiction in the Act or was based on diversity of citizenship, federal law applied as to the recoverability of penalties, attorneys fees, and prejudgment interest; (3) as a matter of federal law, prejudgment interest should be a- warded, and (4) as a matter of convenience and practicality, interest should be determined at the rate allowed by the law of the forum state. Reversed and rendered in part and remanded in part. 1. Insurance - 429.1(3) Evidence that, following a 12 to 14-inch rainfall which caused flooding conditions in the city, which caused flood- water to rise to waist level in the street in front of the in- sureds’ home, and which caused the water to reach a point approximately half the distance between the street and the house, the insureds noticed cracks in the walls of their home which continued to increase in size following the inundation sustained determination that the cracks in the home were a direct loss caused by flood for purposes of policies issued under the National Flood Insurance Act. National Flood In- surance Act of 1968, § 1302 et seq., 42 U.S.C.A. §400let seq. OF Pe ae RE FA ee : a * ; by ts AY a te 5 A-3 2. Insurance - 429.1(3) Evidence that, during heavy rainfall, soil surrounding in- sureds’ home became supersaturated with moisture which caused the home to heave or rise slightly, and that a drain- age canal behind the home was then drained rapidly, which caused the soil to dry and the house to settle unevenly, caus- ing cracking in the slab, sheetrock and masonry of the home, demonstrated that the damage to the structure was caused by earth movement which was not a “mudslide” so that the damage fell within a peril excluded from coverage under a policy issued under the National Flood Insurance Act. National Flood Insurance Act of 1968, § 1302 et seq., 42 U.S.C.A. § 4001 et seq. See publication Words and Phrases for other judicial constructions and definitions. 3. Contracts - 176(2) Determination of the legal operation of unambiguous language of a contract is a function for the court and not the jury. 4, Insurance - 429.1(3) Testimony by contractor that the best way to repair structural damage to insureds’ home was to demolish the house and slab and rebuild a similar house upon a stronger slab, that the failure of the foundation was due to flooding of the area, and that the soil surrounding the home shrank as the water table lowered, thus causing the house to drop, demonstrated that structural damage was due to earth move- A-4 ment other than a “mudslide” and thus was caused by a peril excluded from coverage under a policy issued under the National Flood Insurance Act. National Flood Insurance Act of 1968, § 1302 et seq., 42 U.S.C.A. § 4001 et seq. 5. Federal Courts - 419 Regardless of whether federal court had jurisdiction in action to recover under policy issued under the National Flood Insurance Act on the basis of diversity of citizenship or on the basis of the jurisdictional grant contained in the Act, the interest in uniformity of decision under the Act mandated the application of federal, rather than state law, with respect to the right to recover penalties, attorneys fees, and prejudgment interest. LSA--R.S. 22:658; National Flood Insurance Act of 1968, § 1333, 42 U.S.C.A. § 4053; 28 U.S.C.A. § 1332. 6. Interest - 39(2) United States - 110 Award of prejudgment interest in action brought under the National Flood Insurance Act is required as a matter of fed- eral law; fact that the government has a financial stake in the program is not sufficient to clothe the private insurer with the role of sovereign immunity from awards of interest. National Flood Insurance Act of 1968, § 1302 et seq., 42 U.S.C.A. § 4001 et seq. 7. United States - 110 Generally, the United States is not liable for interest ex- cept where the liability is imposed by statute or assumed by contract. A-5 8. Interest - 39(2) Prejudgment interest is awarded when necessary to com- pensate an injured plaintiff; it is not allowed when it is not necessary element of compensation. 9. Interest - 31 As a matter of convenience and practicality, the amount of prejudgment interest awarded in an action under the National Flood Insurance Act should be determined at the rate allowed by the law of the forum state. National Flood Insurance Act of 1968, § 1302 et seq., 42 U.S.C.A. § 4001 et seq. Robert Kopp, Atty., Marta W. Berkley, Atty., Civil Div., Dept. of Justice, Washington, D.C.,P. A. Bienvenu, P. Albert Bienvenu, Jr., Bienvenu, Foster, Ryan & O’Bannon, New Orleans, La., for defendant-appellant cross-appellee. Leopold B. Babin, Houma, La., for plaintiff-appellee cross- appellant. P. Albert Bienvenu, Jr., P. A. Bienvenu, Bienvenu, Foster Ryan & O’Bannon, New Orleans, La., for National Flood In- surers Association (original defendant). Appeals from the United States District Court for the Western District of Louisiana. Before CLARK and GEE, Circuit Judges, and LYNNE* District Judge. *Senior District Judge of the Northern District of Alabama, sitting by designation. A-6 CHARLES CLARK, Circuit Judge: These cases both involve claims by insureds under policies of flood insurance issued pursuant to the National Flood In- surance Act of 1968, 42 U.S.C.A. § 4001 et seq. After a consolidated trial Andrew J. Daigle won a jury verdict again- st the National Flood Insurers Association in the amount of $12,084.56, and Carl D. West won a verdict in the amount of $17,500.00, the policy limit. Judgment was entered pursu- ant to the verdicts, but on post-trial motion the amount of each judgment was reduced by the $200 policy deductible. On appeal the National Flood Insurers Association! con- tends (1) that the trial judge should have granted defendant’s motions for directed verdict and for judgment notwithstand- ing the verdict since the evidence was insufficient to show that the damage was a direct loss by flood; (2) that the trial judge should have granted defendant’s motions for directed verdict and for judgment notwithstanding the verdict since the undisputed evidence established that the damage result- ed from a peril which the policies excluded from coverage; (3) that the jury awarded damages for items not covered by the policies; and (4) that the trial judge committed reversible error in instructing the jury. On cross-appeal the plaintiffs raise additional issues involving the recoverability of a penal- ty and attorney’s fees provided by Louisiana insurance law 1. On April 5, 1978, over two months after oral argument in this case, Patricia Roberts Harris, Secretary of the Department of Housing and Urban Development (HUD), was substituted as party-appellant in the place of the National Flood Insurers Association, The Department of HUD assumed the operation of all of the insurance aspects of the flood insurance program previously performed by the National Flood Insur- ers Association on January 1,1978. In conjunction with this undertak- ing, HUD agreed to assume responsibitity for the continuation of cover- age under policies previously issued by the Association, including the defense of pending claims asserted pursuant to such policies. This change in parties has no effect on the rights of these plaintiffs under the policies issued to them, i B a a ee eee ee RS ies Bok “am opened A-7 and the recoverability of prejudgment interest. We reverse both cases and remand the West case for new trial on the issue of damages only. Since these decisions turn on the terms of identical poli- cies of insurance issued to the plaintiffs by the defendant, we will set forth those terms with some particularity. Upon the payment of a premium by the plaintiffs, the defendant agreed to insure the plaintiffs’ homes in the Morgan City, Louisiana, area ‘‘against all DIRECT LOSS BY ‘FLOOD’ as defined herein. . .” The policy defined ‘‘flood”’ as follows: Wherever in this policy the term ‘‘flood” occurs, it shall be held to mean a general and temporary condition of partial or complete inundation of normally dry land areas from (1) the overflow of inland or tidal waters, (2) the unusual and rapid accumulation or runoff of surface waters from any source, or (3) mudslides which are caused or precipi- tated by accumulations of water on or under the ground. Immediately below this definition was a ‘Perils Excluded”’ provision: Perils Excluded -- This Company shall not be liable for loss: ‘ (a) by . . .(3) water, moisture or mudslide damage of any - kind resulting primarily from conditions, causes or occurr- ences which are solely related to the described premises or are within the control of the Insured (including but not limited to design, structural or mechanical defects, failures, stoppages or breakages of water or sewer lines, drains, pumps, fixtures or equipment, seepage or backup of water, or hydrostatic pressure) or any condition which causes flooding which is substantially confined to the described A8 premises or properties immediately adjacent thereto; (d) by fire, windstorm, explosion, erosion, earthquake, landslide or any other earth movement except such mud- slides as are covered under the peril of flood, or by theft; The Daigle policy had a term of March 31, 1973, to March 31, 1974, and the West policy had a term of April 16, 1973, to April 16, 1974. The Daigle Case The plaintiff’s evidence in the Daigle case showed that the Daigles had purchased their house new in 1966. The house had a slab foundation and was built on reclaimed swamp land. The soil prevalent throughout this area is a mixture of humus and clay which expands when wet and contracts when dry. These soil movements cause houses built on slabs to heave and settle slightly with soil moisture changes. Despite numerous wet and dry periods during the seven years before April 17-18, 1973, the Daigles noticed no structural damage to their house. During that time, however, they had found it necessary on occasion to purchase dirt fill for use in land- scaping, gardening, and repairing “pot holes” which had developed in their yard. , On April 17-18, 1973, a twelve - to fourteen-inch rainfall inundated the Morgan City area. That rainfall caused flood- ing conditions in many sections of Morgan City, and the flood water was waist-deep in the street in front of the A-9 Daigles’ house. The water reached a point approximately half the distance between the street and their house, the highest it had risen since they bought the house, but the flood waters never entered their house. Following this rain- fall a severe drought occurred which lasted through August. Mrs. Daigle testified that they noticed damage to their house almost immediately after the rainfall. They first heard cracking sounds, and then they observed small cracks in the walls that got bigger and bigger as time went by. Mr. Shu- maker, a construction ¢ontractor who inspected the house in July 1973, confirmed that the cracking had occurred only a few months earlier, and Mr. Guillory, an architectural engin- eer, opined that ‘‘the flooding certainly had a direct effect on the matter.” [1] This testimony was sufficient to support the jury’s finding that the crack. damage was a direct loss by flood. However, the plaintiff's proof also established how the flood caused this damage, and that proof brings into effect the policy’s earth movement exclusion. [2] According to Mr. Guillory and Mr. Shumaker, the normal situation in Morgan City is for water to be kept in the drainage canals around Morgan City to maintain the water table for the sole purpose of stabilizing the soil. Dur- ing the heavy rainfall of April 17-18, the soil became super- saturated with moisture, which caused the Daigles’ house to heave, or rise, slightly. The municipal authorities became alarmed at the water accumulation in the canals, one of which was behind the Daigles’ house, and they determined to drain the canals as rapidly as possible. The rapid draining of the canals lowered the water table quickly, with the result that the soil dried and the house settled unevenly, causing A-10 cracking in the slab, sheetrock, and masonry of the Diagle house. Dr. Capozzoli, the soil expert who testified for the defen- dant, agreed that the drying of the soil caused the earth to sink and settle, and that in turn caused the damage to the Daigles’ house. He differed from Mr. Guillory, however, about the effect the flood and its aftermath had on this pro- cess. Dr. Capozzoli was of the opinion that the settlement was in process before the flood due to the nature of the soil and that the flood played no more than a negligible role in causing the damage to the house. He did admit, however, that had a professional inspected the house immediately be- fore the flood and found no cracks, and reinspected it im- mediately after the flood and found cracks, he would agree that the flood was a causative factor. At the end of the plaintiff's evidence and again at the close of all the evidence, the defendant moved for a directed verdict both on the ground that the evidence failed to estab- lish that the plaintiff’s damage was a direct loss by flood and on the ground that the evidence established the applicability of several of the policy exclusions, including exclusion of all earth movement except mudslides. The trial judge, being of the opinion that the separate contentions as to coverage and exclusion were merely two sides of the same coin, denied the motion and submitted the case to the jury to determine whether the plaintiff suffered a direct loss by flood. The defendant renewed these contentions on motion for judg- ment notwithstanding the verdict, which the trial court denied. This action was error. The evidence entitled the defendant to judgment as a matter of law in the Daigle case. [3] The determination of the legal operation of the un- = ee ee © a ee ~ ree A-11 ambiguous language of a contract is a function for the court and not the jury. Nat Harrison Associates, Inc. v. Gulf States Utilities Co., 491 F.2d 578 (5th Cir. 1974); Gore v. American Motorists Insurance Co., 441 F.2d 10 (5th Cir. 1971); see Ammons v. Franklin Life Insurance Co., 348 F. 2d 414 (5th Cir. 1965). In this case the undisputed facts show that the immediate cause of the Daigles’ loss was earth movement which was not a mudslide, a peril excluded in unambiguous terms under clause (d) of the ‘‘Perils Excluded” section of the policy. Regardless of the role the flood of April 17-18 played in bringing about the conditions that led to the damage of the Daigles’ house, the testimony of Mr. Shumaker, Mr. Guillory, and Dr. Capozzoli established without contradiction that the immediate cause of the damage was the settlement of the house due to uneven soil support. The house sank because the earth below it shifted and settled as a result of loss of moisture in the soil. Regardless of whether this settlement had been in process over a long period of time or whether it occurred immediately after the flood and draining of the canals, it was still the result of earth movement. In unambiguous terms the policy provides that the defen- dant “shall not be liable for loss... by . . . erosion, earth- quake, landslide or any other earth movement except such mudslides as are covered under the peril of flood...” The policy does not cover loss caused by earth movement in the form of soil settlement. It unambiguously provides that the only earth movement covered is a mudslide caused or precipi- tated by accumulation of water on or under the ground. There is no evidence of a mudslide in this record, nor is there evidence that the general surface of the ground area was un- level. The only mention of a mudslide was Mr. Guillory’s A-12 definition of the term as mud sliding down an incline on the surface of the earth. Cf. 24C.F.R. § 1909.1 (1977) (defin- ing “mudslide” as a “flow .. . of liquid mud down a hill- side...”’), Since the Daigles’ loss occurred in a manner that the policy clearly excluded from coverage, there was no issue of fact to be submitted to the jury. The trial court should have applied the policy exclusion to the undisputed evidence and directed a verdict for the defendant. We therefore reverse the judg- ment in favor of Mr. Daigle and direct the rendition of a verdict for the defendant. The West Case This case was consolidated with the Daigle case for trial and both cases were simultaneously submitted to the same jury. The jury found that the Wests had sustained a direct loss to their property because of flood and awarded them the policy limit. Because of the different facts proved in this case, we sustain the liability portion of the judgment but re- verse the award of damages. According to Mr. West's testimony, the Wests purchased a four-year-old nouse in 1969. This house was in a differ- ent neighborhood from the Daigles’ house. However, the testimony revealed that it too was built on reclaimed swamp land and was supported by a clay-humus mixture soil founda- tion that would expand and contract with soil moisture changes. At the time of purchase the Wests inspected the house thoroughly and found no evidence of cracks, defects, or structural damage, and they observed no such damage prior to the rainfall of April 17-18, 1973. A-13 During this rainfall, flood water inundated the Wests’ property and actually entered the house to a depth of one and one-half inches. Water damage to the floor tiles, air conditioning unit, wall boards, baseboards, and insulation was immediately apparent. Structural damage to the Wests’ house became apparent two to three weeks after the flood: a sliding glass door began to jam, bricks began to pull away from the baseboard, .a ridge appeared under floor tiles, and later an open crack in the floor appeared. Inspection of the house revealed that the concrete slab foundation had cracked in several places. Although the defendant apparently was willing to pay the Wests for the water damage, it denied coverage of the structural damage. [4] The major component of the structural damage was the cracking of the house’s slab foundation. Mr. Patterson, a construction contractor who testified on behalf of the plaintiff, was of the opinion that repairing the existing struc- ture would provide a temporary cure at best. He recommend- ed and gave an estimate, w:.1ch exceeded the policy limits,for demolishing the house and slab and rebuilding a similar house on a stronger or “‘beefed-up”’ slab. Mr. Patterson also attribu- ted the failure of the foundation to the flooding of the area. A fair reading of his testimony, however, reveals that the structural damage to the Wests’ house was also caused by earth movement other than a mudslide,thus bringing into play the same policy exclusion which applies in the Daigle case. Although Mr. Patterson's testimony about how the flood caused the foundation to fail was not as clear as Mr. Guill- ory’s testimony in the Daigle case, the gist of the testimony is the same. He testified that lowering the water table causes the soil to shrink, as a result of which the house drops down. A-14 He testified that the concrete slab supporting the Wests’ house obviously sank in some areas because of the condition of the soil. The reason he wanted to “beef up”’ the slab of a new house was so that it could withstand any “positive negative pressure that may occur in any future flooding situation.” In sum, the slab cracked because changes in the water table due to flooding and drainage of flood waters caused relative earth movements under the slab which created the positive and negative pressures which cracked it. The new stronger slab was required to resist similar forces in the future. Dr. Capozzoli again testified for the defendant, and he concluded that the structural damage had been caused by soil movements and not by the flood. Although Dr. Capo- zzoli andMr. Patterson differed as to the role the flood play- ed in damaging the Wests’ house, they were in agreement that lack of soil support caused the foundation to settle unevenly and crack. The defendant moved for a directed verdict at the end of the plaintiff’s case and again at the close of all the evidence on the ground, among others, that the evidence established the applicability of the provision excluding coverage of loss due to earth movement other than a mudslide. The trial judge denied these motions, and he later denied the defen- dant’s motion for judgment notwithstanding the verdict, which was also made, in part, on the basis of this exclu- sion. The trial judge erred in denying these motions, for the evidence presented by both sides established the immediate cause of the structural damage to have been earth move- ment other than a mudslide. As was discussed in the Daigle ' ’ © ; A-15 case, the policy clearly excludes such losses from its cover- age, and the trial judge should have directed a verdict for the defendant insofar as the plaintiff was seeking to recover for structural damages. Since the flood water entered the house and did some damage to the interior of the West home and to its contents, it is clear that the defendant has some liability under the policy it issued. However, the jury’s award of $17,500 was based on Mr. Patterson’s estimate of the cost to destroy the existing house and slab and to rebuild a similar house on a “beefed-up"” slab, a procedure necessitated only by the cracking of the original slab. We reverse that verdict since the award was incorrectly based on the structural damages to the house and remand for a new trial on the issue of the amount of damages (less the $200 policy deductible) caused by the flood waters that entered the house. The Cross-Appeal Since the defendant insurer does have some liability in the West case, we must consider the issues raised on cross- appeal concerning the applicability of Louisiana statutory law which allows a penalty and attorney’s fees for the ar- bitrary refusal of an insurer to pay a claim, La.Rev.Stat. Ann. 22:658, and the availability of prejudgment interest to a prevailing plaintiff in an action brought on a flood in- surance policy. The plaintiff argues that the state law pro- vision on the penalty and attorney’s fees is applicable in a diversity case on a flood insurance policy because the pro- vision is not inconsistent with but in fact is harmonious with the federal scheme since it facilitates the prompt settlement of claims. The plaintiff argues that prejudgment interest is allowable both because Louisiana law allows prejudgment A-16 interest in such cases and because equity and general con- tract law support an award of such interest. The district court, though inclined to hold that the defendant had not acted arbitrarily or capriciously, denied the plaintiff's claims for the penalty and attorney’s fees as a matter of law and also denied the plaintiff's claim for prejudgment interest. We affirm the judgment denying the penalty and attorney’s fees and reverse the judgment denying prejudgment interest. Whether the plaintiff is entitled to the penalty and attor- ney’s fees granted by Louisiana statute turns on the fact that federal law is applicable in flood insurance cases. Mr. West originally filed this action in Louisiana state court against Aetna Casualty and Surety Company, the servicing agent of the National Flood Insurers Association with respect to the West policy. Although Congress granted jurisdiction in cases involving denials of claims under flood insurance policies to United States district courts without regard to diversity of citizenship or amount in controversy, 42 U.S.C.A. § 4053, Aetna removed this case to federal district court on the basis of diversity jurisdiction, alleging diversity of citizenship and over $10,000 in controversy, 28 U.S.C.A. § 1332. Subse- quently the National Flood Insurers Association was added as a party defendan’ and still later Aetna was granted sum- mary judgment. TT’ plaintiff argues that since this case is in federal court on the basis of diversity jurisdiction, the doctrine of Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), compels the court to apply state law. We pretermit any determination of whether the district court exercised its jurisdiction under the diversity statute or under 42 U.S.C.A. § 4053. Although the basis for re- moval pleaded by Aetna, who turned out not to be the eo — PRED IOEOLL ON L LI IT A-17 proper defendant, was diversity jurisdiction, the fact remains that Congress granted jurisdiction in disputes over the cover- age of insurance policies issued pursuant to the National Flood Insurance Act to federal district courts without re- gard to diversity of citizenship or amount in controversy. We need not resolve whether the application of state or federal law should be determined by which of two juris- dictional statutes a party chooses to allege in invoking the court’s jurisdiction, for even if this properly should be con- sidered a diversity case federal law applies. The National Flood Insurance Act of 1968 makes flood insurance available through a program with large-scale partici- pation by the federal government and carried out to the maximum extent practicable by the private insurance indus- try. 42 U.S.C.A. §4001(b), (d). Besides making insurance available in high-risk, high-rate areas, the Act also contem- plates a unified national program for flood-plain management in order to reduce or avoid future flood losses. 42 U.S.C.A. § §4001(c), 4002(b). Thus, flood insurance is only available in those areas which have adopted land use and control measures conforming to federal criteria. 42 U.S.C.A.§ §4012 (c), 4102. The Secretary of HUD is authorized to establish and ad- minister the flood insurance program. 42 U.S.C.A.5 4011. The Secretary’s involvement in the program was summarized by the Third Circuit in Commonwealth of Pennsylvania v. National Association of Flood Insurers, 520 F.2d 11 (3d Cir. 1975), as follows: . . .[ T]he Secretary is authorized to determine the priori- ties for insurance coverage, the manner in which insur- A-18 ance premiums are to be set, the mechanics of funding, the methods of paying claims, the limitations on payments and on the total amount of outstanding coverage, and the extent of federal financial subsidies for the insurance pre- miums. See 42 U.S.C. §§ 4012-4027; 1968 U.S. Code Cong. & Admin. News pp. 2967-73. Under the Act, 42 U.S.C. § 4041, the Secretary is first directed to implement the program by encouraging the formation of a pool of private insurance companies. The Secretary is then authorized to enter into an agreement with this insurance pool to make flood insurance policies available to the public with premiums subsidized by fed- eral funds. 42 U.S.CS§ § 4041, 4051, 4052. The members of the insurance pool are to sell the insurance, adjust and pay claims and provide risk capital. 42 U.S.C. § § 4052, 4053. The Secretary is authorized to make payments to the pool to subsidize premium rates and can make arrange- ments for reinsurance of the pool in case of excessive loss. 42 U.S.C. § 4055. 520 F.2d at 17. This description indicates the extensive administrative role the federal government plays in the pro- vision of flood insurance as well as its financial role. In addition to § 4053 which confers federal court juris- diction without regard to diversity or amount, 42 U.S.C.A. § 4019 has an important bearing on the issue under consid- eration in this case. That section, dealing with payment of claims, provides: The Secretary is authorized to prescribe regulations es- tablishing the general method or methods by which prov- ed and approved claims for losses may be adjusted and paid for any damage to or loss of property which is cover- ee OPER GERD A-19 ed by flood insurance made available under the provisions of this chapter. Congress has undertaken to regulate the claims adjustment process and judicial review thereof, and nowhere in these Statutory sections or in the regulations implementing them, 24 C.F.R.§ § 1912.21, 1912.22 (1977), is there any mention of use of the statutory law of the forum state on any issue. [5] In discussing the law to be applied by a federal court, the Supreme Court stated in Erie: ‘Except in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state.” 304 U.S. at 78, 58 S.Ct. at 822. Erie’s state law proviso does not apply when a federal statute dominates the subject matter in issue, see Sola Electric Co. v. Jefferson Electric Co., 317 U.S. 173, 63 S.Ct. 172, 87 L.Ed.165 (1942), or when a uniform national rule is necessary to further the interests of the fed- eral government. First National Bank, Henrietta v. Small Business Administration, 429 F.2d 280 (5th Cir. 1970), quoting Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943). Since the flood insur- ance program is a child of Congress, conceived to achieve policies which are national in scope, and since the federal government participates extensively in the program both in a supervisory capacity and financially, it is clear that the interest in uniformity of decision present in this case man- dates the application of federal law. Cf. First National Bank, Henrietta v. Small Business Administration, 429 F.2d 280 (Sth Cir. 1970). Thus, a prevailing plaintiff in a suit on a flood insurance policy issued pursuant to the National Flood Insurance Act is not entitled to recover the statutory penalty and attorney’s fees allowed by state insurance law for arbi- trary denial of coverage. Bains v. Hartford Fire Insurance A-20 Co., 440 F.Supp. 15 (N.D.Ga.1977); Drewett v. Aetna Casu- alty & Surety Co., 405 F.Supp. 877 (W.D.La. 1975), aff'd on other grounds, 539 F.2d 496 (5th Cir. 1976); cf. Charles- ton & Western Carolina Railway Co. v. Varnville Furniture Co., 237 U.S. 597, 35 S.Ct. 715, 59 L.Ed. 1137 (1914) (South Carolina penalty statute for failure of an interstate carrier timely to pay a claim is invalid due to Congressional regulation of the liability of an interstate carrier). Contra, Davis v. Aetna Casualty & Surety Co., 329 So.2d 868 (La. App.1976) (on rehearing). Nothing we say here is inconsistent with Drewett v. Aetna Casualty & Surety Co., 539 F.2d 496 (Sth Cir. 1976). In that case, the plaintiff argued that the ‘“‘loss-in-progress”’ principle should not be applied to a policy issued under the national flood insurance program since the National Flood Insurance Association is not an ordinary profit-seeking insur- ance company. In rejecting that argument the court stated: Because the Program’s exposure to claims and its pre- miums are required to be estimated in accordance with standard insurance practices, and because private insur- ers carry part of the risk, it is clear that Congress did not intend to abrogate standard insurance law principles which affect such estimates and risks. 539 F.2d at 498. The court did not hold the statutory or decisional law of any particular state to be applicable. Rather, it applied the ‘traditional common-law technique of decision” by drawing upon standard insurance law principles. Cf. D’Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 471-72, 62 S.Ct. 676, 686, 86 L.Ed. 956 (1942) (concurring opinion of Mr. Justice Jackson). Wee eye oe wow A-21 Nor does the insurance policy itself, which was drafted under the supervision of the Secretary of HUD, indicate that state statutes allowing penalties and attorney’s fees should be applied in suits over coverage. The pclicy states: Any terms of this policy which are in conflict with the statutes of the State wherein the property is located are hereby amended to conform to such statutes, except that in cases of conflict with applicable Federal law or regu- lation, such Federal law or regulation shall control the terms of this policy. This provision is not applicable to this case, for no “[term] of this policy”’ is asserted to be in conflict with any Louisiana Statute. The policy does not conflict with Louisiana law. The federal scheme, which this policy provision recognizes *o be controlling, simply differs from the Louisiana scheme with respect to available remedies against an insurer who dis- allows claims. In sum, federal law controls disputes over the coverage of insurance policies issued pursuant to the National Flood In- surance Act of 1968 regardless of whether the district court exercises jurisdiction under 42 U.S.C.A.§ 4053 or under 28 U.S.C.A. § 1332. Congress has undertaken to establish a comprehensive flood insurance program under the control of the Department of HUD to achieve policies national in scope, and the interest in uniformity of decisions compels the application of federal law. Asa result, a prevailing plain- tiff is not entitled to recover the penalty and attorney’s fees provided by Louisiana. Nothing in the decisional law of this circuit or in the provisions of the insurance policy points to a contrary conclusion. A-22 [6] It is clear from the foregoing discussion that the plain- tiff is not entitled to an award of prejudgment interest from date of judicial demand based on La.Civ.Code Ann. art. 2924. Nevertheless, there remains an issue whether an award of prejudgment interest is required as a matter of federal law. We conclude that it is . [7] We reject the National Flood Insurers Association's contention that prejudgment interest is not allowable since the United States government subsidizes the flood insurance program. Asa general rule, the United States is not liable for interest except where the liability is imposed by statute or assumed by contract. See United States v. Worley, 281 U.S. 339, 50 S.Ct. 291, 74 L.Ed. 887 (1930); Gray v. Dukedom Bank, 217 F.2d 108 (6th Cir. 1954). The National Flood Insurers Association is not an arm of the sovereign, but an association of private insurers. That the government has a financial stake in this program is not sufficient to cloak the defendant with the robe of sovereign immunity from awards of any interest. Cf. White v. Bloomberg, 360 F.Supp. 58 (D.Md. 1973) (the postal service is an entity sufficiently in- dependent of the government that a judgment against it is not one against the sovereign), aff'd 501 F.2d 1379 ( 4th Cir, 1974). 2 The National Flood Insurers Association’s principal argu- ment against an award of prejudgment interest focuses on 28 U.S.C.A. §1961, which provides interest on a money judg- ment in a civil case from the date of the entry of judgment. The Association asserts that in the absence of @ positive con- gressional allowance of prejudgment interest, 28 U.S.C.A. §1961 prohibits such an award. The decisions in this area, 2. The Department of HUD’s assumption of the National Flood In- surers Association's liabilities does not change the extent of those lia- bilities. A-23 however, indicate that the Association’s reading of the statute is mistaken and that prejudgment interest is an appro- priate element of compensation for a plaintiff who is success- ful in recovering under a flood insurance policy. 28 U.S.C.A. § 1961 does not speak to the issue whether the judgment itself will include prejudgment interest as part of the plaintiff’s compensation. /Jllinois Central Railroad Co. v. Texas Eastern Transmission Corp., 551 F.2d 943 (5th Cir. 1977). This court held in that case that 28 U.S.C.A. §1961 does not preclude a carrier from an award of prejudg- ment interest in its action to recover demurrage charges from a shipper, explaining: The statute [28 U.S.C.A. § 1961] does not limit success- ful plaintiffs to interest from the date of their judgments. Rather it indicates that the judgment itself will bear in- terest, as a matter of law, from the date it is entered, and leaves to other principles of law the issue of whether the judgment itself will include prejudgment interest as part of the plaintiff’s compensation. As stated in Louisiana & Ark. Ry. Co. v. Export Drum Co., 359 F.2d 311, 317 (Sth Cir. 1966), ““§1961. . . has nothing to do with the question of whether prejudgment interest shall be allowed as part of the compensation awarded to make the injured party whole." 551 F.2d at 944 (emphasis in original). In Louisiana & Ar- kansas Railway Co, v. Export Drum Co., 359 F.2d 311 (5th Cir. 1966), the court concluded that prejudgment interest should be allowed in a suit under the Interstate Commerce Act by a carrier to recover freight charges that the shipper refused to pay. The rationale used by the court is equally ap- plicable to a suit seeking recovery on an insurance policy: A-24 As the common law recognizes in analogous situations, the only way the wronged party can be made whole is to award him interest from the time he should have received the money. At the conclusion of the dispute, the parties should be in the same position regardless of whether the shipper does not pay the disputed amount, as here, and the carrier is forced to sue, or whether the shipper pays and then sues for an overcharge. 359 F.2d at 317. See also Rodgers v. United States, 332 U.S. 371, 373-74, 68 S.Ct. 5, 6-7, 92 L.Ed. 3 (1947). The court in Export Drum relied in part on the fact that a sum certain was in controversy; however, prejudgment in- terest is also available on an unliquidated claim when necess- ary to arrive at fair compensation. Miller v. Robertson, 266 U.S. 243, 257-58, 45 S.Ct. 73, 78-79, 69 L.Ed. 265 (1924). In this case, although the amount of liability was not liqui- dated, it was based upon the readily ascertainable value of damages to property rather than personal injury. Under such circumstances it has been held that the better practice is to allow prejudgment interest as an element of compensation in the absence of strong equities to the contrary. See Eazor Ex- press, Inc. v. International Brotherhood of Teamsters,520F. 2d 951, 973 (3d Cir. 1975) (action by an employer against a union under the Labor Management Relations Act); Aetna Casualty & Surety Co. v. United States, 365 F.2d 997, 1006- 07 (8th Cir. 1966) (action by a subcontractor against a surety under the Miller Act). [8] The major factor permeating these cases allowing pre- judgment interest is that such an award is necessary to com- pensate an injured plaintiff. As a corollary, prejudgment interest is not allowed when it is not a necessary element _ A-25 of compensation. Thus this circuit in Barrios v. Louisiana Construction Materials Co., 465 F.2d 1157 (5th Cir. 1972), denied prejudgment interest on a Jones Act claim for person- al injuries tried on the law side, explaining: Unlike collision cases and wrongful death cases where the loss, although unliquidated, occurs at one time and is measurable as of that time, this is a case in which the dam- ages awarded by the jury included substantial compensa- tion for future pain and suffering and future loss of earn- ings. 465 F.2d at 1168. The examples of collision cases and wrongful death cases cited by the Barrios court were O’Don- nell Transportation Co. v. City of New York, 215 F.2d 92 (2d Cir. 1954) (prejudgment interest in order to make the injured party whole is the general rule in admiralty cases), and National Airlines, Inc. v. Stiles, 268 F.2d 400 (5th Cir. 1959) (interest from the date of death is necessary to provide ‘fair and just compensation” in an action under the Death on the High Seas Act). Since Berry v. Sladco,Inc., 495 F.2d 523 (Sth Cir. 1974), the case chiefly relied upon by the defen- dant, was a personal injury action under the Outer Continen- tal Shelf Lands Act, the rationale of the Barrios court ex- plains the result reached there. See also National Airlines, Inc. v. Stiles, 268 F.2d 400, 406 (5th Cir. 1959) (prejudg- ment interest is not necessary in a personal injury action where a plaintiff has the right ‘“‘to recover for pain and suf- fering and injuries up to the date of trial and as to the fu- ture’). Although some courts have relied on 28 U.S.C.A. | §1961 to deny prejudgment interest in personal injury claims based upon federal law, as did the Berry court, these holdings are not to be read as relating to prejudgment interest awarded as part of the compensation to make the injured party whole. A-26 See Sanford Bros. Boats, Inc. v. Vidrine, 412 F.2d 958, 972-73, & n.12 (Sth Cir. 1969). [9] The National Flood Insurance Act was intended in part to make insurance with adequate limits of coverage available to persons for flood losses. 42 U.S.C.A.§ 4002(a) (5), (6). The damages recoverable are pecuniary in nature, not personal, and the amount is based upon the readily as- certainable value of services and property. Fair compensa- tion to the plaintiff for his loss covered by the insurance policy issued by the defendant can only be achieved by in- cluding the award of prejudgment interest as a mandatory element of damages. See Louisiana & Arkansas Railway Co. v. Export Drum Co., 359 F.2d 311, 317 (5th Cir. 1966). On remand the district court should award Mr. West interest from the date payment was due under the policy provisions. As a matter of convenience and practicality, the amount of interest should be determined at the rate allowed by the law of the forum state. See Louisiana & Arkansas Railway Co. v. Export Drum Co., 359 F.2d at 317. REVERSED AND RENDERED, IN PART, AND RE- MANDED, IN PART. A-27 APPENDIX B 42 U.S.C.A. Sections 4001, 4012 and 4012a § 4001. Congressional findings and declaration of purpose Necessity and reasons for flood insurance program (a) The Congress finds that (1) from time to time flood disasters have created personal hardships and economic dis- tress which have required unforeseen disaster relief measures and have placed an increasing burden on the Nation’s re- sources; (2 ) despite the installation of preventive and protec- tive works and the adoption of other public programs design- ed to reduce losses caused by flood damage, these methods have not been sufficient to protect adequately against grow- ing exposure to future flood losses; (3 )as a matter of nation- al policy, a reasonable method of sharing the risk of flood losses is through a program of flood insurance which can complement and encourage preventive and protective measures; and (4) if such a program is initiated and carried out gradually, it can be expanded as knowledge is gained and experience is appraised, thus eventually making flood insur- ance coverage available on reasonable terms and conditions to persons who have need for such’protection. Participation of Federal Government in flood insurance program carried out by private insurance industry (b) The Congress also finds that (1) many factors have made it uneconomic for the private insurance industry alone to make flood insurance available to those in need of such protection on reasonable terms and conditions; but (2) a program of flood insurance with large-scale participation of A-28 the Federal Government and carried out to the maximurn ex- tent practicable by the private insurance industry is feasible and can be initiated. Unified national program for flood plain management (c) The Congress further finds that (1) a program of flood insurance can promote the public interest by providing ap- propriate protection against the perils of flood losses and en- couraging sound land use by minimizing exposure of proper- ty to flood losses; and (2) the objectives of a flood insurance program should be integrally related to a unified national program for flood plain management and, to this end, it is the sense of Congress that within two years following the ef- fective date of this chapter the President should transmit to the Covigress for its consideration any further proposals necessary for such a unified program, including proposals for the allocation of costs among beneficiaries of flood protec- tion. Authorization of flood insurance program; flexibility in program (d) It is therefore the purpose of this chapter to (1) authorize a flood insurance program by means of which flood insurance, over a period of time, can be made avail- able on a nationwide basis through the cooperative efforts of the Federal Government and the private insurance industry, and (2) provide flexibility in the program so that such flood insurance may be based on workable methods of pooling risks, minimizing costs, and distributing burdens equitably among those who will be protected by flood insurance and the general public. - nnn A-29 Land use adjustments by State and local governments; development of proposed future construction; assistance of lending and credit institutions; relation of Federal assistance to all flood-related programs; continuing studies (e) It is the further purpose of this chapter to (1) encour- age State and local governments to make appropriate land use adjustments to constrict the development of land which is exposed to flood damage and minimize damage caused by flood losses, (2) guide the development of proposed future construction, where practicable, away from locations which are threatened by flood hazards, (3) encourage lending and credit institutions, as a matter of national policy, to assist in furthering the objectives of the flood insurance program, (4) assure that any Federal assistance provided under the program will be related closely to all flood-related programs and activities of the Federal Government, and (5) authorize continuing studies of flood hazards in order to provide for a constant reappraisal of the flood insurance program and its effect on land use requirements. Mudslides (f) The Congress also finds that (1) the damage and loss which results from mudslides is related in cause and similar in effect to that which results directly from storms, deluges, overflowing waters, and other forms of flooding, and (2) the problems involved in providing protection against this damage and loss, and the possibilities for making such protec- tion available through a Federal or federally sponsored pro- gram, are similar to those which exist in connection with ef- forts to provide protection against damage and loss caused by such other forms of flooding. It is therefore the further pur- pose of this chapter to make available, by means of the A-30 metheds, procedures, and instrumentalities which are other- wise established or available under this chapter for purposes of the flood insurance program, protection against damage and loss resulting from mudslides that are caused by accumu- lations of water on or under the ground. Erosion and undermining of shorelines by waves or currents (g) The Congress also finds that (1) the damage and loss which may result from the erosionand undermining of shore- lines by waves or currents in lakes and other bodies of water exceeding anticipated cyclical levels is related in cause and similar in effect to that which results directly from storms, deluges, overflowing waters, and other forms of flooding, and (2) the problems involved in providing protection against this damage and loss, and the possibilities for making such protection available through a Federal or federally sponsored program, are similar to those which exist in connection with efforts to provide protection against damage and loss caused by such other forms of flooding. It is therefore the further purpose of this chapter to make available, by means of the methods, procedures, and instrumentalities which are other- wise established or available under this chapter for purposes of the flood insurance program, protection against damage and loss resulting from the erosion and undermining of shorelines by waves or currents in lakes and other bodies of water exceeding anticipated cyclical levels. Pub.L. 90-448, Title XIII, §1302, Aug. 1, 1968, 82 Stat. 572; Pub. L. 91-152, Title IV, §409(a), Dec. 24, 1969, 83 Stat. 397; Pub.L. 93-23, Title I, § 108(a), Dec. 31, 1973, 87 Stat. 979. ..000... ee ee anal ese > = A-31 § 4012. Scope of program and priorities Priority for insurance for certain residential and church properties and business concerns (a) In carrying out the flood insurance program the Sec- retary shall afford a priority to making flood insurance avail- able to cover residential properties which are designed for the occupancy of from one to four families, church proper- ties, and business properties which are owned or leased and operated by small business concerns. Availability of insurance for other properties (b) If on the basis of -- (1) studies and investigation undertaken and carried out and information received or exchanged under section 4014 of this title, and (2) such other information as may be necessary, the Secretary determines that it would be feasible to extend the flood insurance program to cover other properties, he may take such action under this chapter as from time to time may be necessary in order to make flood insurance available to cover, on such basis as may be feasible, any types and classes of -- (A) other residential properties, (B) other business properties, (C) agricultural properties, A-32 (D) properties occupied by private nonprofit organiza- tions, and (E) properties owned by State and local governments and agencies thereof, and any such extensions of the program to any types and classes of these properties shall from time to time be pre- scribed in regulations. Availability of insurance in States or areas evidencing positive interest in securing insurance and assuring adoption of ade- quate land use and control measures (c) The Secretary shall make flood insurance available in only those States or areas (or subdivisions thereof) which he has determined have -- (1) evidenced a positive interest in securing flood insur- ance coverage under the flood insurance program, and (2) given satisfactory assurance that by December 31, 1971, adequate land use and control measures will have been adopted for the State or area (or subdivision) which are consistent with the comprehensive criteria for land management and use developed under section 4102 of this title, and that the application and enforcement of such measures will commence as soon as technical information on floodways and on controlling flood elevations is avail- able. Pub.L. 90-448, Title XIII, §}305, Aug. 1, 1968, 82 Stat 574 Pub.L. 91-152, Title IV, § 410(a), Dec. 24, 1969, 83 Stat. 397; Pub.L. 92-213, §2(c)(1), Dec. 22, 1971, 85 Stat. 775. Tope mes tae eS oe A-32a 4012a. Requirement of flood insurance for Federal ap- proval of financial assistance Amount and term of coverage (a) After the expiration of sixty days following December 31, 1973, no Federal officer or agency shall approve any financial assistance for acquisition or construction. purposes for use in any area that has been identified by the Secretary as an area having special flood hazards and in which the sale of flood insurance has been made available under this chap- ter, unless the building or mobile home and any personal property to which such financial assistance relates is, during the anticipated economic or useful life of the project, cover- ed by flood insurance in an amount at least equal to its development or project cost (less estimated land cost) or to the maximum limit of coverage made available with respect to the particular type of property under this chapter, which- ever is less: Provided, That if the financial assistance provided is in the form of a loan or an insurance or guaranty of a loan, the amount of flood insurance required need not exceed the outstanding principal balance of the loan and need not be required beyond the term of the loan. Federal regulations for flood insurance requirement: amount of coverage (b) Each Federal instrumentality responsible for the super- vision, approval, regulation, or insuring of banks, savings and loan associations, or similar institutions shall by regulation direct such institutions not to make, increase, extend, or re- new after the expiration of sixty days following December 31, 1973, any loan secured by improved real estate or a A-32b mobile home located or to be located in an area that has been identified by the Secretary as an area having special flood hazards and in which flood insurance has been made available under this chapter, unless the building or mobile home and any personal property securing such loan is cover- ed for the term of the loan by flood insurance in an amount at least equal to the outstanding principal balance of the loan or to the maximum limit of coverage made available with respect to the particular type of property under the chapter, whichever is less. State-owned property ; exemption; list of States (c) Notwithstanding the other provisions of this section, flood insurance shall not be required on any State-owned property that is covered under an adequate State policy of self-insurance satisfactory to the Secretary. The Secretary shall publish and periodically revise the list of States to which this subsection applies. Pub.L. 93-234, Title 1, §102, Dec. 31, 1973, 87 Stat. 978 A-33 APPENDIX “‘C’””’ 24 C.F.R. Sections 1909.1 and 1911.4 24C.F.R. § 1909.1 000... “Flood” or “Flooding” means: (a) A general and temporary condition of partial or com- plete inundation of normally dry land areas from: (1) The overflow of inland or tidal waters. (2) The unusual and rapid accumulation or runoff of sur- face waters from any source. (3) Mudslides (i.e., mudflows) which are proximately caused or precipitated by accumulations of water on or under the ground. (b) The collapse or subsidence of land along the shore of a lake or other body of water asa result of erosion or under- mining caused by waves or currents of water exceeding anticipated cyclical levels for suddenly caused by an unusu- ally high water level in a natural body of water, accompani- ed by a severe storm, or by an unanticipated force of nature, such as flash flood or an abnormal tidal surge, or by some similarly unusual and unforeseeable event which results in flooding as defined in (a)(1) of this section. — 24C.F.R. §1911.4 ““Mudslide”’ (i.e. mudflow) describes a condition where there is a river, flow or inundation of liquid mud down a hill- side usually as a result of a dual condition of loss of brush cover, and the subsequent accumulation of water on or under the ground preceded by a period of unusually heavy or sus- tained rain. A mudslide (i.e., mudflow) may occur as a dis- tinct phenomenon while a landslide is in progress, and will be recognized as such by the Administrator only if the mud- flow, and not the landslide, is the proximate cause of damage that occurs. A-34 ...000... § 1911.4 Limitations on coverage. (a) All flood insurance made available under the Program is subject (1) To the Act, the Amendments thereto, and the Regula- tions issued under the Act; (2) To the terms and conditions of the Standard Flood Insurance Policy, which shall be approved by the Adminis- trator for substance and form, and is subject to interpretation by the Administrator as to scope of coverage pursuant to the applicable statutes and regulations; (3) To the specified limits of coverage set forth in the Ap- plication and Declarations page of the policy; and (4) To the maximum limits of coverage set forth in § 1911.6. (b) Insurance under the Program is available only for loss due to flood, as defined in §1909.1 of this subchapter. The policy covers damage from a general condition of flooding in the area which results from other than natural causes, such as the breaking of a dam, but does not cover damage which re- sults from causes on the insured’s own property or within his control or from any condition which causes damage, which condition is substantially confined to the insured’s premises or properties immediately adjacent thereto. (c) The policy does not cover losses from rain, snow, sleet, hail, or water spray that do not result in a general condition of flooding. It covers losses from freezing or thawing, or from the pressure of weight of ice and water, only where they occur simultaneously with and as a part of flood dam- age. It covers losses from mudslide (i.e., mudflow) but does not cover damage from landslides or from earthquakes or similar earth movements which are volcanic or tectonic in ~~ ee ee oe A-35 origin. The policy does not cover erosion which is not flood-related, claims resulting from occurrences already in progress at the time of the inception date of the term of the policy, or losses caused by land slippage rather than mud- slide (see definition of mudslide/mudflow in §1909.1 of this subchapter). Damage by seepage and sewer backup may be covered only when directly resulting from a flooding situa- tion. Abnormal erosion caused by high water levels accom- panied by violent wave action along a lake or other body of water is considered a flood (see definition of flood-related erosion in § 1909.1 of this subchapter). However, there is no coverage where normal continuous wave action, accompanied by erosion or the gradual and anticipated wearing away of the land is the proximate cause of property damage. (d) The policy protects against loss to contents only at the location described in the application, except that con- tents necessarily removed from the premises for preservation from a flood are protected against loss or damage from flood at the new location pro rate for a period of 30 days. A-36 APPENDIX D Excerpts from Transcript (Daigle Case) (120) ..000... BY MR. BABIN: Qs At this time, Mrs. Daigle, do you own the house, do you and your husband own the house outright? (BY MRS. DAIGLE): A Yes, we do. Q___ ‘The Act of Sale itself says August of ‘66 not ‘64. Was the house new at the time that you purchased it? A Yes, it was. Q___Had you ever noticed any damage to the house at the time you purchased it? A No, sir. QI see. Had you noticed any damages develop with the structure of the house over the years? A No, we had no problem. QI see. When was the first time you did notice some type of damage, if you did? A-37 A Well, the only thing we noticed was right after the rain in the spring of ‘73. MR. BIENVENU: I am sorry but I cannot hear the witness, if the Court please. THE COURT: Ma'am, please speak a little louder. (121) BY THE WITNESS (MRS. DAIGLE): A We noticed cracks in the spring of ‘73. BY MR. BABIN: Q__siIsee. You referred to a storm. Do you know approxi- mately when this storm occurred? A Therain storm? April the 17th of ‘73. Q__I see. Could you describe the weather conditions im- mediately prior to that day and on the day? A I don’t remember any bad weather until the rain started about five or six o'clock. Q Which date was that? A April the 17th. A-38 Q 17th? A Yes. Q Was there any water in the area accumulated as a result of this rain? A Yes, there was water in the streets almost waist deep. QI see. You said almost waist deep? A Yes. Q And did you take pictures of that, subsequent to the deluge? A Yes, sir. (125) BY MR. BABIN: When did you apply for flood insurance, Mrs. Daigle? As soon as it was available. I don’t remember the date. How did you learn it was available? It was advertised in the newspaper and on the radio. Oo > A PF A I see. And you did purchase flood insurance? Did you purchase flood insurance and pay for it? ——— A-39 A Yes. Q_Isee MR. BABIN: Your Honor, in connection with the testimony, I of- fer, introduce, and ask to be filed in evidence the policy of flood insurance and the check by Mr. and Mrs. Daigle in the amount of seventy-three dollars as premium payment there- fore. THE COURT: All right, sir. The policy of insurance has a maximum limit of seventeen thousand, five hundred dollars. That is true in each case. All right. You may proceed. MR. BABIN: Your honor, I would like to have this introduced as P-3. I would like to note for the Court that the policy term is from March the 31st, 1973 to March the 31st of "74. (126) THE COURT: This policy covers any loss up to seventeen thousand, five hundred dollars that the plaintiff sustains as a direct loss by flood. All right. (Whereupon said documents marked P-3 for identification were received into evidence and filed with the Clerk of Court. A-40 ...000... NOTE: P-3 - Policy of flood insurance and cancelled check for premium (sent in the original) IOs, (129) ...000... BY MR. BABIN: Q_ Now, Mrs. Daigle, when did you first notice the damage which you spoke of to your house? (BY MRS. DAIGLE); A Almost immediately after the rain. We heard a lot of cracking throughout the day, constant cracking. And then we started noticing small cracks that got bigger and bigger until we realized we had a big problem. Q_ Now, let’s get the time sequence straight. You purchas- ed, as the policy indicates, that is in evidence, that the ef- fective date of the policy is March 3lst of ‘73. This rain occurred April the 17th? A Yes. Ft OR enone - dite toe A-4l (149) BY MR. BABIN: Q_ Now, Mrs. Daigle, again, can you describe the weather conditions on the day of April 17th? A I don’t remember any bad weather until the rain started. Once it started raining, it just didn’t stop. Q _sIsee. MR. BABIN: Your Honor, in connection with the testimony of the wit- ness relating to climatological conditions, I ask the Court take judicial notice of a publication signed by and issued by the Department of Commerce. THE COURT: Probably so. I will have to see it. MR. BIENVENU: I have no objection if that is the one you sent me. MR. BABIN: That’s correct, Your Honor. THE COURT: Let it be received in evidence. A-42 (Whereupon said document marked P-9 for identification was received into evidence and filed with the Clerk of Court.) ...000... NOTE: P-9 - Report published by Department of Commerce re weather conditions (sent in the original) ..000... (150) THE COURT: What was April the 17th? MR. BABIN: 1973. That,Your Honor, was going to describe the evi- dence that I will submit. THE COURT: Let me see it, please, sir. MI). BABIN: All right. THE COURT: Well, I will give it back to you. What was that, some hurricanes or something? 9 ewrerme tReet IR RTT A-43 MR. BABIN: No, Your Honor. It indicates -- Well, I will describe it as I go through them. But, basically, it indicates that approxi- mately fourteen inches of rain fell in the area, the Morgan City area, on a twenty-four period of April the 17th to the 18th, that flooding conditions occurred in the Morgan City area. MR. BIENVENU: Well, we are not interested in the Morgan City area. There is no doubt about the fact that the records show that kind of rain fell, but we are interested in what happened at this lady's house. THE COURT: Well, the Court will receive those in evidence. MR. BABIN: All right, Your Honor. In connection with this, I do want to point out a special weather summary which is signed by George W. Cry, who is a climatologist for the National Weather Service. In the special weather summary and this is for March, ‘73, which is prior to the April month. And it said that precipitation was (151) heavy with measurable amountson twelve to sixteen days in most areas. Excessive general rains fell in various sections on A-44 the 4th, 5th, 15th and 16th and 23rd and 24th of March. Monthly totals were in excess of ten inches throughout most of the state except in the northwest and along the west Louisiana coast. Totals were more than double March nor- mals at most places in Central, East Central, Southwest, South Central. And a map is provided which indicates Mor- gan City falling within the South Central area. And from one hundred to a hundred and fifty to nearly two hundred per cent in the Northern Divisions. So, there was quite a bit of rain in the north part of the state, also. Normals, when they say -- THE COURT: Are we interested in March or April? MR. BABIN: Well, March and April, Your Honor. The whole thrust of the thing is, Your Honor, that flooding conditions occurred along the Mississippi and Atchafalaya River areas, that as a result of this flooding condition, the soil became saturated and then the final deluge in April -- THE COURT: Well, good. Proceed with the evidence. MR. BABIN: Okay. Normals, as indicated, are over a thirty year period from 1931 to 1960. So, this deviation from the normal is compared over a thirty year a ~N wee eeeee et re tee ee eet es meer ers —— A-45 (152) period. Another part of the data is for April, 1973. It in- dicated on the face that the greatest one day of precipitation was in the Morgan City area on April the 17th, of 7.81 inches. And, also, indicated in the daily precipitation schedu- le that 5.03 inches fell on the 17th, and 7.81 fell on the 18th of that month. Again, in the annual summary for 1973, they indicate that April was a very wet month, departing from the normal, which was established over a thirty year period, of 10.76 inches. Also, indicating in the subsequent months that the weather was extremely dry and below normal rainfall occurred. As will later be pointed out, in evidence, this will become significant. That’s all that I have on that evidence, Your Honor. MR, BIENVENU: Did you mark it? MR. BABIN: I offer and ask that it be introduced in evidence as Plain- tiff’s exhibit P-9, 10 and 11 for identification were received into evidence and filed with the Clerk of Court.) ...000... NOTE: P-9, 10 and 11 - Special Weather Summary signed by George W. Cry of the National Weather Service (sent in the original). : \ t ...000... CROSS EXAMINATION BY MR. BIENVENU: Q_ Mrs. Daigle, your house is higher than the road in front of it, is it not? (BY MRS. DAIGLE): A Yes. Q__ And your yard in the front sloped down to the road- way, is that not true? A Yes, sir. Qs And do you know the size of your lot, approximately? A Sixty by approximately one hundred and twenty. Q_ Can you tell me approximately how far from the road your house is located? A About thirty feet. (157) (BY MR. BIENVENU): a A-47 Q___Now, you spoke about the rain on April the 17th, and | believe you gave us some period of time but I am not sure that I understood you. When did the rain start in April? (BY MRS. DAIGLE): A Late afternoon, five o’clock in the afternoon. Qs And when did it stop? A Well, it went on into the night. I don’t know exactly when it stopped but it went into the night. Qs April 17th, into the night? A Yes. Q __sDid it rain on the 18th all day? A No, I am sure it stopped early on the 18th because I took the pictures and it wasn’t raining. (166) (BY MR. BIENVENU): Q Okay. Is the canal in the back of your house a drainage canal? (BY MRS. DAIGLE): A Yes. A-48 Qs Are there pumps to pull it out, or do you know? A There are pumps. Q And when it has been filled before, as you have said, how long has it taken for water to be pumped out after the rain has stopped? A Well, it’s been several hours before it was down. Q__Isee. And how long did it take for water to be pumped out after that heavy rain of the 17th and 18th, if you recall? A Not until late that afternoon. Qs Afternoon of what? The 18th? A The 18th. Q__ So, it was then again several hours, as it had been in the past? A Oh, yes, sir. ...000... (169) ...000... BY MR. BIENVENU: Q_ Mrs. Daigle, referring again to your two pictures that you identified earlier, which were taken by you, and the first ~— re re ee A-49 one is P-2-B, and I believe you said that you took that with your back to the house and looking to your left, is that right? (BY MRS. DAIGLE): A That’sright. Yes. Q__ And then P-2-A was taken looking in the same direc- tion, isn’t that right? A Yes, sir. Q__ And on the left-hand bottom of the picture, there is a post, fence post, is that fence post to your -- A Yes, sir. Q Now, do you know vhat the mud in the street is? A It looks like two piles of dirt from the neighbor. (170) Q_ The neighbor? They were in his front yard, weren't they and they washed down into the street? A No. It was on the neutral ground. Q On the neutral ground? A On the other side of the sidewalk. Q__sBy neutral ground, you mean the ground immediately adjacent to the sidewalk, but you have no middle median? A-50 A No. Between the sidewalk and the street. Q__— How long had that been there? Do you know? A No, I sure don’t. Q Now, you took these pictures, both, on August (sic) the 18th, 1973? That was after the rain stopped, obviously? A That’s right. Q Did you take any pictures from your house looking directly out into the street? A No, I sure didn’t. Q = You didn’t, huh? A That's the only ones I took. QI see. Let me ask you this. Looking at the one, P-2-B, the greenery, is there not a line showing how high the water actually came? A Yes, there would be something right here. Q__s Brown, a little brown debris, isn’t that right, and some on the sidewalk as well? A Yes, sir. es pup Ce A-51 (BY MR. SHUMAKER): A The damages on his house there did not indicate that they were prior to a month or few months before. You can take a brick there where - it’s cracked and you can tell if it's a recent break or an old break. Anda everything was there to indicate that the damages that I saw were very recent. (BY MR. BIENVENU); Q__ And I guess you saw that when you made up this report in September, 1973, sir, is that right? A I saw then and I saw back in July. (233) Q Oh, you examined the house yourself in July? A Yes, sir. As I explained awhile ago, sir. ...000... (252) ...000... (BY MR. BIENVENU): Q_Isee. All right, sir. (BY MR, GUILLORY): A In case of the type of rain we had on April the 17th, A-52 when the streets were flooded, and as I recall, most of the lot was flooded. I am sure that the clays get supersaturated and we have evidence that buildings in that part of the coun- try not only settle but they also heave. Mr. Shumaker just testified, if I may refer to that, Your Honor. ...000... (BY MR. BIENVENU): Q But it is common knowledge, is it not, in the Morgan City area that the place where these houses were built, were built over swamp and there was no soil sustain to the weight of those houses, isn’t that right? (BY MR. GUILLORY): A That there was no soil to sustain their weight, no, sir, I can’t agree with that. Obviously, there was because for seven years it sustained it. Q___ How do you know? A Because there was no cracking. Q___— How do you know? A I would think a housewife would have a crack in a house after seven years and didn’t find it -- — oO. EOE EE ere. A-53 Q ‘Yeah, but how do you know? (265) THE COURT: Well, of course, this is based on the presumption and his opinion is based on the presumption that the lady had lived in the house since April of 1966 and that she hadn't noticed any of these before April of "73. You are basing your whole opinion on the presumption? THE WITNESS: Yes, sir. The fact that I see her for about seven hours a day and five days a week. I am sure she would have discussed it with me, as she did when it finally did occur. ...000... (268) (BY MR. BIENVENU): Q__s And your thought is that there was no appreciable sink- ing of that house before? A The evidence indicates that. Qs Sir? A The lack of cracking indicates there was no appreciable sinking. ...000... A-54 (271) BY MR. BABIN: Q Mr. Guillory, have you read Dr. Capozzoli’s report? (BY MR. GUILLORY): A I see here in my letter, I state that I did. Of course, this was quite some time ago and I don’t remember any details of it. Q At that time, in your report, in referring to the type of houses, like brick veneer homes, that occur in this area that are built in the area where Mrs. Daigle lived, didn’t you state that it was your experience that there was slight settlement or heaving during wet and dry periods? A Yes, sir. Q_ Now, this would be during normal wet and dry periods, either before or after the big rain? A Right. Q Okay. And that there would be slight movement of the foundation during these times, before and after? A Yes, sir. Q But that the big rain would have changed those con- ditions, would it not? A Well, it was a more extreme condition. I think the prin- ee een are et rere = eee ~ A-55 ciples involved are the same, sir, it’s just more of it. I see. It would cause a greater heaving? Yes, sir, and consequently a quicker lowering. (272) I see. Because of the speed with which the canals were drain- ar O PF A Q___Now these are monolithic slabs, are they not, much like a brick, say, on a smaller scale? A Well, a monolithic means that you are pouring the slab and the foundation simultaneously. Q Isee. When I use the analogy like a brick, for instance, this aggravated heaving, going up and down, if you dropped a brick, would it be like dropping these monolithic slabs, would it break because of the great heaving? A That’s the principal involved, yes. ...000... PROCEEDINGS OUT OF THE PRESENCE OF THE JURY: THE COURT: The Court, of course, is required to excuse the jury at A-56 the completion of the plaintiff’s evidence in order to afford counsel an opportunity to make any motions they might wish to make, and that was the purpose of my excusing the jury. Mr. Bienvenu. MR. BIENVENU: Yes, sir. As I understand it, the plaintiff Daigle rests. THE COURT: That is correct. MR. BIENVENU: At this time, if the Court please, we move the Court to direct a verdict in favor of the defendant because the evi- dence does not establish that there was a direct loss by flood to the property of the insured. And, further, that the evi- dence also establishes that the loss, as attempted to be estab- lished by plaintiff, falls within the perils excluded by the company. THE COURT: Have you completed your dissertation? MR. BIENVENU: I have, sir, unless you want to hear some argument from me. ...000... (THE COURT): Of course, depending upon what the jury does one way or the other, I don’t know that this isn’t a case regardless of who wins it before the jury, I am not going to have -- I mean, generally, if the defendant wins before a jury they go home elated and happy and think the battle is over but I don’t know in this case whether that’s true or not. Of course, I have only heard the evidence from your expert. I don’t know what Mr. Bienvenu’s experts are going to say. What are you going to say, Doctor, caused that damage? DR. CAPOZZOLI: Just the long-term draw down of the water in the canal of which this flood was a very (277) small portion of it. THE COURT: The flood was a portion of it? DR. CAPOZZOLI: Very small portion. According to the numbers here, the canal was generally eight feet below the house and they A-58 rapidly pumped out the canal after the flood down to ten feet for a period of a few days, maybe. THE COURT: That’s something the lawyers are going to have to argue about before the jury. My own impression would be a great deal of that would depend upon the supposition that these people had been in this house for a long time and never noticed this before. And, as Mr. Guillory says, he knows that his secretary would have told him about it had it happened before. I don’t know, but my personal viewpoint, unless there is some evidence to the contrary, I would certainly have to as- sume that it hadn’t happened before, when they hadn’t seen it before. MR. BIENVENU: Hadn’t seen it. THE COURT: I understand the problem and I am faced with a legal proposition. First, I am going to let the jury decide. I am going to read them flood. I am going to read them the perils and I am going to read them direct loss by flood. Maybe re- sort to a dictionary will help. I don’t know. Thank you very kindly. ...000... (BY MR. BIENVENU): Q All right. As a result of that information and your study, did you reach any conclusion as to whether or not the rain of April 17th and 18th, 1973, caused the damage com- plained of by the Daigles? (BY DR. CAPOZZOLI): A Yes, I reached a conclusion. My conclusion was that the rain had practically no effect on the action of the soil or houses. Q Why is that, sir? A My analyses and the reasoning brought out this mech- nism or movement of the soil under the houses. The area was swamp. Water was standing in it, which I saw by aerial photos taken by the Government and had trees growing in it. The area was re-claimed. The levee was put around this portion. Canals were dug, drainage was put in, water was (295) pumped out, and successive rain waters that fell at the house were also pumped out. The net effect of this reclamation process was to dry the soil. In other words, the water that fell down there and stayed there before was not being taken away. The drying could be more pronounced on the north A-60 side of the Bellow residence and the Daigle residence, and all the residences on that street. Of course, they were closest to the canal. The fact that the canal had been for seven or more years prior to the April, ‘72 (sic) floods gave the soil at least that seven years to dry. Now, the drying of this soil would cause it to settle, cause it to sink, cause it to move downward for two reasons. Number one; when you dry something you take the water away or lower the water level. You make it heavier. An analogy, a person sitting in a bath tub. When the tub is empty he feels fairly heavy, when the tub is full of water, he is quite light. The same thing with soil. The water you have supporting it up, the less it weighs. So, by putting this drainage in and re-claiming this land and taking water away, you are drawing the soil, making it heavier and causing this soft humus, very soft clay, to compact under its own weight. The second action that would occur as a result of this organic matter which is not exposed to air instead of being under water, as it was before, this organic matter is not exposed to air. It will tend to decay whereas under water it would not decay. (296) Q___ Even though some of it is under ground? A Yes. Of course, organic matter is spongy and you would get air into it. Now, these two actions would occur without any weight on the soil whatsoever. I think the justification for that analogy, the purpose of that analogy, is borne out by pot holes that were seen in the yard, front and rear yard of the Daigle residence. In other words, there was no weight there but I could see it had been there, yet, you still have little sinking of the ground causing the pot holes to develop. A-61 So it’s my opinion that type of shrinkage of the soil occurred as a result of the land development rather than the building being on it or any building that may have occurred before that. Q_ What happened after that building was put on there? A The weight of the building just added a third item to the weight of the soil which was increased because of the lower- ing of the water table. They had the decay of the humus and now you have the weight of the building, so that’s going to tend to make the building go down more than the normal soil. Q_I think I asked this, but in your opinion, would the building go down, the slab go down evenly or unevenly? A Most likely unevenly because the soil was not uniform. (297) Q Now, you heard the testimony about the rain water on the 17th and 18th of April, 1973. And about flooding in the streets and water in the canal in the rear and then the subse- quent draining of the water, some say hurriedly, two days, I think, or forty-eight hours. In your opinion, would that flooding and subsequent draining have anything to do with the soil immediately under the house, remembering that water did not reach the house but only to some point in front of the house, half-way up from the street out there? A The total effect of the flooding, in my opinion, would be negligible. There would be some occurrences as a result of the flooding. For instance, the soil that had been dry, asa result A-62 of the canal the water went down five or six feet, that soil would get saturated. Of course, it would get saturated by heavy rain, too. So, that soil was thoroughly saturated but not much more so likely than in a heavy rain. Now, it was brought out by Mr. Guillory that when you saturate the soil, rather than dry it, you cause it to swell when you wet it and it will shrink when it dries. Of course, fortunately for en- gineering, when the soil swells after it has been dried, it only swells out ten per cent. So, the net effect is a constant sink- ing. So, if you take, you say this building went down an inch as a result of the drying action in the previous years, it would come up, in my opinion, no more than a tenth of an inch If it went down two inches, (298) then it would be two tenths of an inch. So, of course, it would go down -- this would happen after two inches or three inches or four inches of rain, maybe not quite as much as it would if it backed up to the house. As far as the canal being drawn down rapidly versus a slow draw down affecting the house, in my opinion, that had no effect. The flow of water through the soil would be relatively slow whether the canal was down within one day or one week, will not affect your house. In my opinion, two months after the flood, one month after the flood, it made no difference in the condi- tion of the house whether the flood occurred or not. Q___ How about six months after, seven months after, eight months? A The longer you go, the less effect it has. ...000... A-63 (308) ...000... THE COURT: Well, the question is, Doctor, of course, I think we have brought it to a good head before but if there had been no cracking for the previous seven years and no settlement for the previous seven years, would then, under those circum- stances, you agree with Mr. (309) Guillory? THE WITNESS (DR. CAPOZZOLI): If someone told me, that I know personally, by looking and inspecting it, a professional, that there were no cracks in the house on April the 10th or 12th, and there were cracks on April the 18th and 19th, then I would agree with him, that that was the cause. MR. BABIN: No further questions. (313) MR. BIENVENU: : A-64 One minute, please. The defendant rests, if the Court please, in the Daigle case. THE COURT: Both sides may file any motions they wish at this time. MR. BIENVENU: We desire to file a motion for a directed verdict on all the evidence because, as we pointed out, we are of the opin- ion that the evidence overwhelmingly does not establish, I mean overwhelmingly establishes this was not a direct loss by flood. Plaintiff has not established that this was a direct loss by flood, and the exclusions of the policy in addition, which are made applicable by the testimony rendered here today certainly would defeat any attempt to bring in this claim under the policy provisions which are rather plain. And if you would like me to refer particularly to the exclusions in the policy -- THE COURT: I think what you are referring to, I presume, is rain, sleet, snow, hail, and so forth? MR. BIENVENU: That’s one part, and then you go to two and three, numbers two and three in “A’’, two and three in “A’’, Judge. THE COURT: A-65 Ihave them. Yes, sir, I am familiar with them. MR. BIENVENU: All right, and then “D” and ‘‘F’’ would equally apply. THE COURT: I see. Ihave them. All right, (314) sir. MR. BABIN: Your Honor, in connection, I would like to make my own motion. THE COURT: Well, surely. You can make one but let me rule on his first. MR. BABIN: Okay. THE COURT: Well, Mr. Bienvenu’s two-pronged attack, of course, is really but one assertion, and that is that there is just no evi- dence here that this damage was directly the result of a flood. A-66 If he wins on that facet of the case, he automatically wins on the perils excluded facet of the case. I think it’s one and the same. I think it is going to bea jury issue but, anyway, I am going to deny the motion. (315) 000... THE COURT: I know, but the big problem here is what caused the homes to sink and was it a direct result of this heavy rain. I think that’s what the jury is going to have to decide. The motion for a directed verdict is denied. There is no use to argue the same matter twice. I have given you a suggested form verdict, and in each one I just say: did the Daigles sustain a direct loss to their property because of flood? If they answer that yes, then in dollars and cents how much damage was sustained as a proxi- mate result of the flood. And, of course, I will tell them the same thing about the next case, the West case. And I am telling them, of course, about property, we are talking about the home , and that it must have happened during the terms of the policy. Now, on the question of what is direct loss, I have got to tell the jury something. I will read them the policy but I will charge them, unless someone can show me why I should not from 249 Federal Reporter at 164. I will tell them that A-67 it is well settled that the word direct cause as used in all in- surance policies is synonymous and legal intendment with the word proximate cause. (316) Proximate cause has many times been defined as, et cetera. ‘Then, of course, there is a Fifth Circuit case and a Louisiana case which is cited in that case, and that goes on a Supreme Court case. The Louisiana case is the Norwhich case, N-O-R- W-I-C-H, which you will find at 141 F 2d, 600. We can go off the record. (Whereupon an off the record discussion was had between the Court and counsel.) (Court Recessed.) , oes Osee (22) (Title Omitted) No. 19,624 SPECIAL VERDICTS F.R.C.P, 49(a) We, the jury in the above-captioned case, unanimously find as follows: INTERROGATORY NO. 1} Did the Daigles sustain a direct loss to their property because A-68 of “‘flood’’? Answer ‘‘Yes”’ or ‘‘No”’ Answer: Yes (23 ) If you answer the above “Yes”, then proceed to answer number two (2). INTERROGATORY NO, 2 In dollars ana cents, how much damage was sustained as a proximate result of flood? ANSWER $12,084.56 We, the jury, have unanimously answered the above and foregoing interrogatories as herein indicated, and herewith return the same into court as our special verdicts. s/ Russell Courville FOREMAN OF THE JURY Lafayette, Louisiana February 3rd, 1976 Filed Feb. 3, 1976 A-69 APPENDIX E Excerpts from Transcript of Testimony (West Case) (328) 000... (BY MR, BABIN): Q Now, Mr. West, can you describe the weather condi- tions on April the 17th of ‘73? Could you describe the con- ditions in the street on the day after that in front of (329) your home? (BY MR. WEST): A On the 18th? Qs Right. A Well, when I came home on the evening of the 17th -- My wife had called me. She was driving a small car and the streets were flooded about six o’clock and they couldn't get home, and she went over to a friend’s house and called me and asked me to pick her up and bring her home. And I have a larger car, you know, with higher wheels. So, it was about ten or twelve inches deep in the street on the evening of the 17th. Qs Yes, sir. A-70 A So, I drove her home and water was, you know, in my front yard about halfway to the house. And she isa little bit afraid of things like that. So, she wasn’t going to stay there. So I packed her bag and carried her back up to her friend’s house to pick up her car and went to her mother’s for the night. And I stayed there. I parked my car up the street and walked back into the house and I stayed there. Q_ I see. Now, did it or did it not continue to rain that night? A Most of the night. I wasn’t up all night but when I got up the next morning there was water lapping in my front door. (330) Q Water was in your house? A. It was coming in the front door on the morning of the lith. Yes, sir. Q__Isee. Now, in your area are you on the down side of a hill or up side of a hill, or can you describe the location of your property in reference to the Bayou Vista area? A Iam on the south side of Columbus Street and it goes down hill from north to south. And the houses in front of me, across the street, are about six or eight inches higher than mine. And also, the street rises from east to west and I am on about the highest part of the east-west route. The house next door, on both sides of me, had four or five inches of water in them. I had about an inch and a half in mine. Q How much water would you say, standing, water, there A-71 is with reference to the street below your house? A There wes three or four feet in the streets. The streets are lower, you know, because they was running thirty-five horsepower motors up and down the street picking up people and moving them out, the ones that didn’t leave. Q I see. Mr. West, had you -- THE COURT: Well, did you all leave? THE WITNESS: That day I left, yes, sir. (331) THE COURT: In other words, they picked you up with boats? THE WITNESS: Yes, sir. I had left my car up the hill, six blocks away. THE COURT: You and your family were all picked up? THE WITNESS: No, sir. I took my wife out the night of the 17th. A-72 THE COURT: In a car? THE WITNESS: In a car. Yes, sir. I drove her out, back up there where she had left her car. THE COURT: When did you all come back to the house? ...000... (332) 000... BY MR. BABIN: A Mr. West, was there any noticeable damage to your home prior to April 17, 1973? (BY MR. WEST): A No. Do you have a garden? I had. I have had in the back of the house, yes. Did you used to work in that garden? > O PP A Yes. A-73 Qs How often? A Oh, a couple of days a week, when my wife could hem me up out there. (333) Q I see. And if there had been any cracks, noticeable cracks, in the brick, and so forth, do you think you would have taken note of that while you were working in the garden? A Iam sure! would. Q What happened with reference to your house? Did it sustain any damage after the flood? A I had darnage inside my house, tiles were coming up, water stood there about eighteen or twenty hours or some- thing in the house and I had a lot of sediment and mud and stuff, and then afterwards the tiles started peeling up. I didn’t have carpet but we picked everything up that I thought would get damaged and put the TV set up on top of the bed and what-have-you. Q__siIsee. This was immediately after? A This was the evening of the 17th. Q_ I see. Now, subsequent to that time, did you notice any structural damage to your home? A Yes. A couple of weeks afterwards, it got to where I A-74 couldn’t open my back door, the sliding glass door to my patio wouldn’t open. And I checked to see if it was off the rollers. It wasn’t. From the outside, you could see where the wall was pulling away from the door facing, had it in a bind. (334) Q Did you have any problem in your kitchen? A Yeah. There was a ridge under the tiles. You could see a ridge down across the corner of the house and a subsequent one formed off that one through the living room and out to the front door. Q__Isee. Did you take pictures of that structural damage? A AA little later, I did, when it broke on through. The ridges broke and the floor separated about an inch and a half and completely cracked, moved about an inch and a half, (343) ...000... (BY MR. WEST): A s#nyway, I called Mr. Boudreaux (my insurance agent). We were all out there talking and I called my agent and asked him what I should do. He said, ‘‘Well, go ahead and clean it up as best you can, do what you can, and there will be some adjusters by when they get around there. They have two or three in town now and just keep note of what all you do.” | said, ‘‘Well, my air conditioner has shorted out,” and he said, A-75 “Well, just get it fixed and keep the receipt.”’ And he said, ‘That will be quite all right.’’ He said, ‘‘they have adjusters in the area when they get around, they'll get to you.”’ That’s what I did. (BY MR. BIENVENU): Q Had you found it necessary to put fill on your lot, or earth on your lot, at any time? (BY MR. WEST): A No, sir. I never had to fill that lot. Q___— How about -- A Wait. One time during a hurricane a tree blew down in my front yard and I had to fill the hole up where the tree fell down. That’s the only time I ever hauled any fill. ...000... (364) 000... (BY MR. BABIN): A-76 Q 3-11. And you changed about half a dozen tiles in there, is that right? (365) A Yes, sir. Q_ And I think you said you did something to a wall board? A I pulled the baseboards off in my hall and living room, most of everywhere it was wet so that it would dry out, put a fan on it to dry it out. That’s all. 000... (BY MR. BABIN): Q_ Now, when you went to bed finally that night, I believe you said you stayed up along time. Where was the water the last time you saw it before going to sleep? (BY MR. WEST): A It was in my house. Q__ Oh, before going to sleep? (356) A Yes, sir. Q_sI misunderstood. I thought you said the next morn- ing. A-77 A It was lapping in the front door. I tried to put a bunch of towels and throw rugs, and things, and went on to bed. Q It was lapping at the front door? A __ It was coming under the front door. Q__ And did you successfully keep it out? A No, sir, I didn’t. I slowed it up a little bit. It was about waist deep in the street and my car was five blocks away. It was midnight and I didn’t feel like wading through that water to get out of there, or I would have. Q__iIam sure. When did you elevate the contents of your house? A While my wife was packing to leave that evening, we picked the television set up and put it on top of the bed, and we picked up, you know, other things that we thought would be damaged. Q_ And what evening are we talking about? The 17th. The evening of the 17th? Yes, sir. O Fr O P Do you remember when that rain started? (367) A-78 A No sir, not specifically. Sometime that afternoon when I came back by the office, they said that my wife had called and left anumber. She worked and she had tried to go home and she couldn’t get to the house. Q__s Because of the water in the street? A Yes, sir. She drives a little, small car and she was a- fraid to drive in water and so she went to a friend’s house and left word for me to call her. Q Has there ever been water on the street in front of your house before? A Yes, sir, there has been water on the street. Q Has there ever been water in the yard when there is water in the street? A Right on the edge, there sure has, maybe a foot on the edge of the grass. Is your house elevated from the street? Yes. Is it higher than the street? Yes. Six inches, would you say? > O FF O FPF A Oh, probably, I would say more than that. — A-79 More than that? All the houses are built up like that. It slopes, is that right? P O FP Oa Yes, sir, slopes to the street. (368) Q__—Had you ever had anybody examine your house for you before to find out if there was anything wrong with the structure? A’ No, sir. When I bought the house, it was an FHA ap- proved house and the VA inspected it. I bought it under a VA loan and they approved it, and obviously I just accepted their approval that it was all right. Qs That was in 1969? A Yes, sir. Q_ And you think the house was about three years old then? A Yes, sir. Something like that, yes, sir. Q__sDid you buy it from a former occupant, Robert Blair, the man you bought it from? A Right. Qs Had he lived in the house before? A-80 A Yes, he lived in the house. He lived in it and moved to Mississippi, I believe. Q_ Yes. Where was the air conditioning unit that you made reference to? A It was in the back yard on a little —— like you normally set outside air conditioning units on. Q Incidentally, was there water in the back yard? A Yes, sir. Q Was it as high as the front yard? (369) A Evidently, it was. The whole yard was covered. Q_ The whole yard? You think water went over the in- cline? A Oh, yes, sir. Q__ ‘The top of the incline? A Yes, sir. Q__— How soon did you say that these cracks that you have had reference to appeared in your house after this flood? A Well, we started noticing the back door, the sliding glass door wouldn’t open two or three weeks after, something like that. And I was checking to find out what was the matter and I noticed the bricks was pulling away from the base- board, and then I really got to looking and discovered the little ridge on the floor and two or three other things at that A-81 time. Qs That’s the first time that you looked to see if there were any cracks in your house? A That’s the first time I had any trouble with my door opening and closing. Q__ And that’s what prompted you to do that? A Yes, Q __sIsit a wooden door? (370) A_ No, sir, it’s a sliding glass door, patio door. Q__It wouldn’t move one way or the other? A Well, it would with quite a bit of difficulty. It would hang. You had to jiggle it around to get it to move. It got progressively worse. You can’t open it now at all. The only door I can go out of is my carport door. ...000... (375) ...000... (BY MR. BABIN): Q__ Thank you, Carl. Now, at the time you bought your home from the Blairs in 1969, did you inspect the house? (376) A-82 (BY MR. WEST): A Yes. Q__sDid you make a thorough inspection of the structure of the house? A No. My wife and I went throughthe house about four different times before we decided to buy it, in and around, all over. Q__s And the house was three years old at this time? A I believe that’s correct. Q___ And did you observe any cracks in the house? A No, I did not. ...000... (385) ...000... BY MR. BABIN: Q Now, Mrs. West, had any of the damage that you have identified in these pictures, had any of that or any of the start of that type of damage occur prior to April the 17th, to your knowledge? (BY MRS. WEST): A-83 Nothing that I can notice. I see. Now, how often do you clean the house? About twice a week. Oo Fr» O P I see. Thank you very much. 000... (390) (BY MR. BIENVENU): Q__sODid you ever notice any pot holes in your yard? You know what I am referring to as a pot hole, a hole of some cir- cular dimension appearance? No. Not at all? Nothing. In other words, in the front or back? Not that I can recall. At any time before or after the flood? I don’t believe. I can’t remember really noticing any. Co FP @2 F? &2 3? ®0O °°? I see. Now, you said, I believe, that you didn’t re- member whether you had left the night of the flood or the A-84 next morning? A I believe it was that night, if I am not mistaken. Q_ And when you left, did I understand you to say some- thing about the water lapping at the front door? A It was seeping through under the door when I left. Q___— How did you get out of your house? A Well, I couldn’t get my car in. My husband had a larger car. He took me home. Q How did you get to the car, to and from the car? Through the front door, the side door? A Through the side door. Q_ Through the side door. Was there any water there? (391) A Yes, sir. Q In the yard? A The yard was full. Q Was the yard completely covered with water, front and A-85 Q Now, you say water was seeping through the front door. Did you do anything to try to keep the water out? A Well, I put rags and towels down around the doors. Q You did that? A I did that. Q As! understand it, it was two or three days, you’re not sure of how long it was, but you came back? A Right. Q When you came back, say it was two or three days later, how did you get to your house? A Well, the water was gone then. Q All the water was gone? A A\l the water was gone. Q In the street? A In the street was gone. Q Okay. Now prior to this downpour of rain, had you ever had rain which brought water onto the street and onto your yard? A Yeah, we have in the street, up about over a fourth (392) A86 of the yard. Q Up about a fourth of the yard? A Yes. Q Once or several times? A Oh, I don’t know. A time or two, when we have heavy, you know, rains. By a time or two, you are meaning one and two, or -- Well, I would say a couple of times anyway. A couple of times? > O PP @0 Yes, uh-huh. . Q_ Was that long prior or immediately prior to this April rainfall that we are talking about of April the 17th? A Well, it was over a period of since we had been there. I don’t remember the dates or anything. MR. BIENVENU: I have no further questions. I would just like to pass these four photographs on to the jury which the witness identified as being pictures of the same area. THE COURT: You may do so. alll A-87 MR. BIENVENU: They have seen them -- but -- THE COURT: You may proceed, counsel. (393) MR. BABIN: As soon as the jury gets through. RE-DIRECT EXAMINATION BY MR. BABIN: Q Mrs. West, after these other showers or rainstorms, referred to by Mr. Bienvenu, came into your yard partially, did you have any damage after that, that you could ob- serve? (BY MRS. WEST): A Nothing. Q This is the first time, after the April 17th deluge, 1973, big rain and flood, that's the first time you noticed damage? A Right. A88 (398) ...000... (BY MR. BABIN): QI see. What did you find? What was the basis of your report? (BY MR. PATTERSON): A Well, I found his house needed repairs, and I looked at it and decided what I thought it would take to put his house in a liveable condition, and then wrote him this letter telling him how much I thought, at that time, it would take dollar- wise. Q What did you include as stated in your report? A Well, I concluded at that time it would take about twenty-two thousand, nine-hundred and fifty-six dollars to make the necessary repairs. I recommended that a beefing up or a -- let’s see -- demolish his present structure and replace it with the same size structure but to possi>ly beef up the slab to withstand any positive negative pressure that may occur in any future flooding situation. And I guess that’s (399) it. Q__sLet’s see, you stated, in other words, that the entire structure would have to be demolished, is that correct? A Well, if we were going to move in and do the work, A-89 that’s the only way we do it. Q Is there any other -- would there be any other practical way to repair this house adequately? A As far asl am concerned, no. We attempted to do some of this underpinning one or two other times and we weren't successful in doing it. Q _sIsee. A I understand that there are people that have done it and some of the work has held up and some of it }-asn’t. Q _sIsee. A But! didn’t feel like we should expend ourselves under- taking something like this, that in my own mind, as I said, wouldn't work. Q_ When you refer to underpinning -- pardon me. Upon your inspection, or did you find, or did you not find the slab, in fact, cracked? A It was cracked in several areas. Q___ How severe were these cracks? A Well, they were so severe that if it had been my house, I wouldn’t have lived in it like that. OOO. A-90 (402) ...000... BY MR. BABIN: Q_ What do you attribute the cause as to the damage that you observed in the West home? (BY MR. PATTERSON): A I attribute it to the flooding of the area, the general area, Q__Isee. Specifically, what evidence did you observe con- cerning the structure? A Well, the evidence of the failures of the foundation. We noticed a lot of this. It happened right after the flood in the whole area, not only this area, but in other areas of Morgan City. And it’s just like an earthquake, as far as I (403) am concerned. After an earthquake you observe things that have happened and there wasn’t any earthquake. It was a flood, so I don’t know of anything else to attribute it to. Q__Isee. The type of foundation that the West house was resting on, would you consider that type of foundation as adequate for that house? A It's a standard type of foundation that is used through- out that area, so if it works, you know, I don’t argue with it. ee ee A-91 I see. So I would say it would be adequate. Concerning this specific area? PrP O FP Aa Yes. Oh, yeah, that’s standard. It’s a monolithic slab. They used to call them a floating type slab and this is the way they are building houses today. Q __sIf you were building a house like this, would you do it the same way? A If I were to remove the debris of this house, I would build it the same way. MR. BABIN: Thank you very much. ...000... (408) ...000... (BY MR. BIENVENU): Q__Isn’t it a common occurrence in the Morgan City (409) area, in these new subdivision that have been built over old A-92 swamp land, that houses built there do sink? (BY MR. PATTERSON): A Sir, I think whenever you put a load on a piece of ground, it’s going to sink. You can walk on it and it’s going to sink, yes, sir. Q Well, you know this Bayou Vista area, don’t you? A Yes, sir. Q You know that was once a swamp? A Yes, sir. Q__s And you know that the land on which this house was built was once a swamp? A Yes, sir. Qs And you say that house would sink just from the fact that it was built on that land? A Yes, sir. It would sink to a degree. Q I see. And it doesn’t sink evenly, it depends on the formation of the soil? A It depends upon the formation of the soil? Q__sIt doesn’t sink evenly because it depends upon the for- mation of the soil in the area under the house, is that right? —— a Oe eel oe ne A-93 A It’s possible. Q___Now, when a house sinks, that’s what causes damage to the structure, is that right? A Is that right? (410) I am asking you the question. No. The sinking does not cause damage? No, sir. Q A Q A Q_ “hat causes damage? A When the foundation fails. Q Well, what do you mean by the foundation? A By the foundation, I mean something that is built on a foundation bed that will support a structure of some sort. Q Well, when the land below the foundation sinks, doesn’t it carry the foundation with it? A Not necessarily. Qs Doesn’t the foundation rest on the land? A In this particular case, it does. A-94 Q Well, in all slab cases, unless you have piles? A No, sir. That’s right. You can have a structural slab foundation that does not rest on a normal ground founda- tion. It’s a supported structure. Q __sIf you have piles? A Not necessarily piling. There are other type founda- tions. Q What other kinds? A Spread footings. Q Well, that’s a type of piles? (411) But it’s not piling, no, sir, it’s not. Did this house have that? Did it have what? Spread footings? No, it didn’t have. This house was built on a slab? Oo > O FF O PF A It was a monolithic slab, typical type foundation that the Federal Housing Authority passes, the Veteran’s Admin- istration passes for that area. eel ce 9 BO eS at etn tte Oe tweet o. pehaeeen is ee > , A-95 What do you mean by monolithic, please? A slab that is made, concrete poured all in one form. And did this concrete slab that supports this house sink? > O PF A It obviously sunk in some areas, Yes. Sir. Q__Andam I correct that you say that when a house is built on land, such as this, it does sink because of the condition of the soil and the weight of the house? A Absolutely. Q You didn’t see this house before the time you went there in, say July? A Yes, sir. I almost bought a lot on the corner. I think this house, it may be two or three lots on the same street. Q_ Well, you saw it but did you inspect it as you say (412) you did in that case? A That’s what I went out there for, to inspect the lot. Q_ I am not talking about the lot, I am talking about this house? A Oh, I stopped and visited with the Wests. A-96 Before you went there in July? Yes, sir. Yes, sir, I guess I inspect -- by the nature of my business, inspect every building that I probably walk into, to a de- gree. Q A Q You visited with them. Did you inspect the house? A I Q Toadegree. You said you found slabs -- I mean, cracks in the slab of the house when you were there in July, am I correct? Yes, sir. Did you see that when you wentthere the first time? No, sir. A Q A Q__sDid you examine the slab? A No, sir, I didn’t make a thorough examination of it. Q = You looked at it? A I probably looked at the house. (413) Q_ Now, you, in your letter, say that due to the changes in the water table, it’s not economically feasible to repair a slab. What do you mean by the change in the water level? ee a a eee ee eT Wii species erick esse A-97 A The change in what? Q Water table. A By the change in the water table, I mean there is a cer- tain elevation in the ground, you know, below the surface that has a lot of water in it, has a lot of moisture in it. This table can be, in some places, as deep as one hundred feet, probably, some places it can be one or two feet. Q_sIn a swamp area, what would you expect it to be? A In an undeveloped swamp area or developed swamp area? Q_ Take a developed swamp area, just as Bayou Vista. A Oh, it could probably be a foot to two feet below the surface, possibly three feet. Q_ What change do you talk about in your letter when you say the change in the water table? A That means that this water table that I have just ex- plained to you changed, the depth of it changes. Q What causes that? Rain? A_ No, the draining out of water in an area. Q_ Allright. The draining out of water in an area causes the lowering of the water table, is that right? (414) A-98 A Yes, sir, that’s right. QQ And when you lower the water table the soil shrinks, does it not? A In most cases, Q And when the soil shrinks the houses on top of it drop down? A The what? Q ‘The house that’s on top of it, on shrinking soil, drops down, does it not? A That's right. Q And this has happened all over Morgan City, hasn't it. A Yes, sir. Q__sIt has happened in the City of New Orleans, too. You said you were a long time resident of that City. A No sir, I didn't say that. I said I graduated from high school in New Orleans. Q All right, sir. Excuse me. Now, you said that if you re- built this house you would beef up the slab. What do you mean by that? A I mean, that I would probably make the slab a little wider. I would probably use larger, let's say, the grade A-99 beams, I would make them a little bit bigger and I would probably put a little more reinforcing steel in it. (415) Q_ Why? I thought you said it was standard? A Why? I'll tell you why. THE COURT: Let him answer the question, please sir. MR, BIENVENU; All right. BY THE WITNESS: A Because if it ever flooded in that area again, I would try to insure that the house did not fail so I would not have to come into court like this. BY MR, BIENVENU: Q__s—Did you do that in other areas where you had built houses? A No, sir. Q___ Beef up the monolithic slab? A No, sir. 000... A-100 (422) PROCEEDINGS OUT OF THE PRESENCE OF THE JURY: THE COURT: The Court will permit Mr. Bienvenu to make any motions that he might wish to. MR, BIENVENU: The defendant moves the Court to enter a directed ver- dict herein in its behalf for the reason that there is no proof in the record that any damage to the house of Mr. and Mrs. West was a direct loss by flood within the meaning of the policy. And, further, because of the fact that the evidence brings the plaintiff's case within the exclusions of the policy which I have previously referred to. Perils excluded were A-1, 2 and 3, D. THE COURT: Had you completed, Mr. Bienvenu? (423) MR, BIENVENU: Yes, sir. THE COURT: The Court will deny the motion. Of course, in this case, a ee oe eee A-101 there was direct evidence that there was actually water in the house. That makes it a much stronger case than the other case. The motion is denied. (Court recessed), (438) (BY MR, BIENVENU): Q You knew, did you not, or you were informed of the fact that there had been a flooding as a result of heavy rain in April, on the 17th and 18th? (DR. CAPOZZOLI): A Yes. Q__sDid you form any conclusion as to whether or not that flooding had any effect on the foundation of the house and on the condition of the sunken corner that you found? A Yes, I have an opinion, and I stated it quite strongly and I said, I do not believe the flood waters caused any significant changes in the house. All of the damage is due mostly to the type of soil on which the house rests and the type of con- struction. A-102 (BY MR. BABIN): Q Yes. Now, Doctor, in your report you said that flood water could affect the settling, is that correct? Did (449) you say this in your report? A Let me look at it and I will tell you. I said could have accelerated the settling in one way. Q Okay. Thank you very much. A When the water rises, it will saturate the soil and will leave the soil wet after the water drops. This heavier satur- ated soil will weigh more and settle faster until it dries again. Heavier rains which occur quite often in this area could cause the same situation. Then, my summary was what I said be- fore, I do not believe the flood water caused anysignificant change in the house. Q Well, Doctor, I am not going to argue with you but the facts seem to defy your analysis in this respect, that no ob- servable damage had occurred prior for up to six years, as the Wests had owned that home, and then after the flood occur- red, then suddenly the cracking appears. Now, as we went through in the other case, how was this possible, you know, of giving the assumption that no cracks appeared? A Well, sir, I don’t know if this will be an answer to your question but as a result of our discussion yesterday, I looked around my bathroom while I was brushing my teeth and I found a few cracks that I didn’t know about. I knew where A-103 to look and I found them in my bedroom. I stopped looking around the rest of the house and that’s a perfect example. ...000... (455) ...000... (PROCEEDINGS OUT OF THE PRESENCE OF THE JURY) THE COURT: The parties may make any motions they might wish to make at this time. Mr. Bienvenu? MR. BIENVENU: All right. Defendant moves the Court to enter a direct- ed verdict herein in its behalf for the reason that plaintiff has failed to prove his claim under the policy of insurance. It has failed to satisfy the requirements of the policy. It has failed to show that the damage to which it refers was a direct loss by flood. Further, plaintiff has failed to introduce evidence to show the amount which it would cost to repair or replace the property with material of like kind and quantity within a reasonable time after such loss without allowing for increased cost of repair or reconstruction by reasonable ordinary ex- ception. THE COURT: The motion is -- A-104 MR. BIENVENU: Further, the evidence establishes that the loss comes within the exclusions to which we made reference, exclu- sions to the policy to which we made reference earlier A-1 and D. THE COURT: The motion is denied. ...000... (84) ...000... (Title Omitted) No. 19,622 SPECIAL VERDICTS F.R.C.P. 49(a) We, the jury in the above-captioned case, unanimously find as follows: INTERROGATORY NO. 1 Did the Wests sustain a direct loss to their property because of ‘flood’? Answer ‘‘Yes”’ or ‘‘No”. ANSWER: Yes —— = A-105 If your answer to No. 1 is “‘yes’’, then proceed: INTERROGATORY NO. 2 In dollars and cents, how much damage was sustained to the property as a proximate result of ‘“‘flood’’? ANSWER: $17,500 (85) We, the jury, have unanimously answer2d the above and foregoing interrogatories as here in indicated, and herewith return the sarne into court as our special verdicts. s/ Russell Courville FOREMAN OF THE JURY Lafayette, Louisiana February 3rd, 1976 Filed: Feb. 3, 1976 A-106 APPENDIX F Flood Insurance Policies NOTE: (1) The policies of flood insurance of the Daigles and the Wests were reproduced from counsel's file copies and not from the original exhibits (P-3 & W-2) introduced at trial because the record could not be located at the time this petition was being prepared. (See letter dated November 29, 1978 of the Deputy Clerk of Court of the United States Dis- trict Court, Western District of Louisiana pp. A-118-9, infra). (2) The standardized flood policy forms are identical in both the Daigle & West exhibits, thus that form is only reproduced once herein (pp. A-107-115). The individual Application & Declarations Forms of the Daigles’ and the Wests’ reproduced herein (pp. A-116-7), each were stapled to a standardized flood policy form in the original exhibits. +e ee Re ee ee Bele ee lt mn eeeee sd Be ee Jao amen, A-107 FLOOD INSURANCE POLICY (Issued Pursuant to the National Flood Insurance Act of 1968 or Any Acts Amendatory Thereof) INSURANCE COMPANIES MEMBERS OF NATIONAL FLOOD INSURERS ASSOCIATION NEW YORK, N.Y. IN CONSIDERATION OF THE PROVISIONS AND STIPULATIONS HEREIN OR ADDED HERETO including the statements in the appli- cation and declarations form attached hereto, and of the premium specified in said application and declarations form, THIS COMPANY, for the term specified from inception date shown in said application and declarations form At Noon (Standard Time) to expiration date shown in said application and declarations form At Noon (Standard Time) at location of the property involved, to an amount not exceed- ing the amount(s) of insurance specified in said application and declara- tions form, DOES INSURE the insured named and legal representatives, to the extent of the actual cash value of the property at the time of loss, but not exceeding the amount which it would cost to repa [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2246%3A2. Public record. Not legal advice.