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January 12, 1978

Irving WINKLER and Nancy Winkler, Plaintiffs,
GREAT AMERICAN INSURANCE COMPANY and National Flood Insurance Association, Defendants

Dooling, District Judge.

The opinion of the court was delivered by: DOOLING


DOOLING, District Judge.

 Plaintiffs, owners of a summer property on the oceanfront at Robins Rest, Fire Island, Town of Islip, sued the defendants under a flood insurance policy issued pursuant to the National Food Insurance Act of 1968 for the direct loss by "flood," as defined in the policy, sustained by their property. See 42 U.S.C. §§ 4001, et seq. Jurisdiction of actions to enforce claims for loss under such policies of insurance is granted to the district court for the district in which the insured property is located. 42 U.S.C. § 4053.

 In April 1972 plaintiffs bought for about $55,000 a two-story summer cottage located at Robins Rest. Robins Rest is the area just west of Ocean Beach. The evidence is that in the late winter or early spring of 1972 a stone jetty or groin had been built just east of plaintiffs' house at the west end of Ocean Beach. As measured off on the map, Exhibit 2, the jetty would appear to have been in the order of 1800 feet to the east of plaintiffs' house. The house was not the nearest house to the ocean. The Looney house, was just east and wholly south of plaintiffs' house, and, thus, nearer to the ocean by the length of the beachfront building lot.

 The Winkler house rested on ten foot locust posts or piles, and it stood on a dune that rose 11 feet above sea level. The first floor elevation of the structure itself was 1 1/2 feet above the dune level. Between the house and the wholly sandy part of the beach there was a stretch about 30 to 40 feet wide of sand dune covered with salt grass and perhaps scrub pine. The plot on which the house stood measured 112 1/2 feet east and west along the ocean front and 50 feet in depth. The house was not a new house; it was some years old; it is shown as having been in place in the September 1, 1968 survey map, Exhibit 3.

 Plaintiffs applied for flood insurance under the Act on September 12, 1972 and insurance was granted to them on or about September 22, 1972 in the amount of $17,500 on the dwelling and $5,000 on the contents. (Later the amount of coverage was apparently doubled.) The policy was effective for one year from September 27, 1972, and the premium for the year's coverage was $84. The estimated actual cash value of the dwelling exclusive of the contents was given as $45,000 and the estimated actual cash value of the contents was given as $20,000.

 In or just before October 6, 1972, plaintiffs decided to build an extension at the west end of the existing two-story building to contain on the first floor a bedroom, laundry, bathroom and store room and, on the second story, a dining room about 11 1/2 feet by 15 feet; a second story sun deck was to extend toward the ocean leading out from the dining room. A walk along the west edge of the new extension would extend beyond its front wall, and stairs were planned to go from that point to the sun deck, which would extend toward the ocean beyond the front line of the rest of the structure. As originally planned the building would have rested on poured concrete piers about 5 1/2 feet in overall length resting in the dune sand, about 4 feet being below grade and a foot and a half above grade. Except at the very center of the planned addition the piers would have been on 4 foot 8 inch centers. However, the front row of piers, those nearest the ocean were 6 feet 6 inches in front of the next in-shore set of piers. The next further in-shore set of piers was 2 feet 4 inches from the next row, which was the row planned to support the front wall of the addition. The two front rows of piers were to support a walk at the first floor level along the front wall of the addition, and to support posts which would support the sun deck above. The outermost set of piers had no other evident function beyond supporting the outer edge of the elevated sun deck.

 Plaintiffs applied to the Town of Islip for a zoning permit on October 6, 1972, and it was granted on October 27, 1972. The estimated value of the work was given at $4,800. The contractor for the work was Tom Hinderlang, Jr., who lived in Robins Rest not far from plaintiffs, had been in the construction business for 20 years and had been living on Fire Island for 7 years.

 By mid-December the concrete piers were all in place. The second story of the addition was enclosed and most of the first story was enclosed except for the front wall at the east end nearest the old construction where only the studding was in place. The window frames had been installed, with glass. No part of the sun deck was in place, nor was any part of the walkway that would have extended across the first floor of the addition.

 Plaintiffs visited the building site frequently as construction went forward. They were at the property on Sunday December 23d. They found that the Looney house, east and south of theirs, had disappeared, and that a part of the porch of the Karr house, next east of them, had been damaged and was sagging. Of the 30 or 40 feet of dune that had been in front of their own house little was left except an irregular section that plaintiff Irving Winkler recalled as being as narrow as 2 feet in some places and as wide as 7 feet in others but which, on all of the evidence, seems to have been somewhat wider than that; apparently its width was in the order of a dozen feet at points. There was still salt grass and what looks like scrub pine on top of the dune.

 What, if anything, had happened to plaintiffs' house is controversial in the extreme. It is plaintiffs' insistence that the ocean water had somehow reached the front line of piers and had toppled one of them, displaced to some extent three others, and left one standing but apparently not sound. It is claimed that by December 23d the front piers had been integrated into the rest of the building (although the plans, Exhibit 8, did not call for that) in accordance with a change in plan which visualized, in effect, an extension of the walk adjacent to the front wall of the addition all the way out to the front line of piers.

 There is no question that the piers were put in place to be an integral supporting part of the completed structure whether they were to support a first floor extended walk or porch, or simply to help to carry the weight of the second floor sun deck. On all the evidence, however, it cannot be found as a fact that the front line of piers had been in any way framed into or tied into the rest of the building fabric. There is no concrete physical evidence of a tie-in of the piers to the rest of the addition by timbers or braces. There is no indication on the visible side of the addition, to the extent shown in the photographs in evidence, that there was anything into which timbers reaching the piers could have been tied. Three supporting timbers protrude from the front of the addition but they are not of a length sufficient to have reached the piers in question. It is, finally, difficult to visualize any kind of wave or water action that would have stripped away the framing and left the piers in the condition in which they are seen in defendants' Exhibit A, a photograph taken on February 6.

 What had happened to the property presents a difficult question. There appears to be no question that enough of the dune was removed by water action of some kind so that the piers were exposed, although the photograph of February 6, 1973 shows an exposure of them which, in the light of some of the descriptions of the events of December 23, might have been expected to be very different. As they appear in that picture -- and it appears to be the only picture definitely dated to the period before the house was moved -- one was thrown down, three are visible, one can be conjecturally supplied at the west end of the picture, and only one appears to be exposed almost to its foot. The picture does show the ocean-ward edge of the dune as a low scarp of the kind caused when wave water undermines the foot of a dune, causing the sand above to collapse into the water, to be transported away, leaving a steep, receding scarp.

 There is no evidence that water washed over the dune to reach the piers of the house. The meagre evidence afforded by the picture of February 6th, Exhibit A, is inconsistent with the sea water's having washed over the dune material. Both the expert evidence and common knowledge are persuasive that, had the wave water gone over the dune, it would not have left the well-defined scarp visible in the picture; there is, indeed, explicit testimony that water was seen under the house and in the area around it, but this evidence can only have meant that the mark of water was visible, for the sand could hardly have retained the water so long if any had intruded. The evidence, so interpreted, is of doubtful significance, and remains, in any event of dubious credibility.

 It is clear that plaintiffs -- very sensibly -- wasted no time in taking steps to protect their property. Some little time at least before December 31st, plaintiffs had been in touch with Hughes Contracting Company, and Hughes under date of December 31st furnished an estimate of $7500 to install thirty-nine 8 inch by 10 inch 35 foot long piles, the tops of the piles to be about 5 or 10 feet above the concrete walk, and to construct a 3 inch by 12 inch bridge at an elevation specified in an accompanying plan. As to the date of the work, the estimate said,

"the above work to be done as soon as house is moved from present location."

 The copy of the estimate produced in evidence is approved by plaintiff Irving Winkler and has a note on it to the effect that it was mailed to Hughes on January 9th.

 The credible evidence is that plaintiffs, consulting with Hinderlang and with Davis Bros. Engineering Corp., decided to move the house off the ten foot locust posts, replace them with 35 foot piles, and then return the house to its original site. Plaintiff Irving Winkler anticipated that if he did not do so, the house would be lost, that he could not hope to keep it at the present site unless he had piers driven into the ground deep enough and extending high enough above ground so that the house would be beyond the reach of the water even if it inundated the entire building site.

 In the circumstances his decision was a sensible one. It was general knowledge, or at least the general belief, that the winter storms were worst in February and March, and that the winter season was the time of year in which the Fire Island beaches lost sand to the sea, sand which was ordinarily replaced by the sea in the summer. Most of the dune in front of the Winkler house had already been lost, and, of the two houses to the east of it, one had been lost and the other damaged. The evidence warrants the conclusion that the ...

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