UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CHARTER OAK FIRE INSURANCE
COMPANY,
Plaintiff-Appellee,

v.

CARTERET COUNTY BOARD OF
COMMISSIONERS; CARTERET COUNTY,                                     No. 95-2858
NORTH CAROLINA,
Defendants-Appellants,

and

OHIO CASUALTY INSURANCE COMPANY,
Defendant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Greenville.
James C. Fox, Chief District Judge.
(CA-94-168-4-F)

Argued: May 8, 1996

Decided: July 12, 1996

Before RUSSELL and ERVIN, Circuit Judges, and NORTON,
United States District Judge for the District of South Carolina,
sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Donald R. Teeter, POYNER & SPRUILL, L.L.P.,
Raleigh, North Carolina, for Appellant. Howell Arnold Burkhalter,
BELL, DAVIS & PITT, P.A., Winston-Salem, North Carolina, for
Appellee. ON BRIEF: Eric. P. Stevens, POYNER & SPRUILL,
L.L.P., Raleigh, North Carolina, for Appellant. Joseph T. Carruthers,
BELL, DAVIS & PITT, P.A., Winston-Salem, North Carolina, for
Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

This is an insurance coverage appeal that originated as a declara-
tory judgment action filed by Plaintiff - Appellee, The Charter Oak
Fire Insurance Company ("Charter Oak") against Defendants -
Appellants, Carteret County, North Carolina and its Board of Com-
missioners (hereinafter collectively referred to as the "County"). The
appeal arises as the result of the district court granting summary judg-
ment in favor of Charter Oak. Relying on North Carolina insurance
law, the district court concluded that the County was not entitled to
any recovery under a Charter Oak commercial property insurance pol-
icy for damages sustained to a county building. Because we agree
with the ruling of the district court, we affirm.

I.

On March 13, 1993, a major windstorm accompanied with heavy
rain struck the North Carolina coast and resulted in damage to the
Carteret County Department of Social Services ("DSS") Building
located in Beaufort, North Carolina. The interior of the building sus-
tained significant water damage primarily as the result of water entry
through a temporary roof. At the time of the storm, the building was
in the midst of a major construction and renovation project which
included the removal and replacement of the old roof. The County
originally contracted with United Contractors of Kinston, Inc.,

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("United") to perform the renovations. In July and August 1992,
United had begun to place trusses for the new arched roof on the
building. The county architect abruptly halted the roof construction in
late August when he noticed that the bottom chords of a number of
the new roof trusses had been cut, thereby potentially damaging the
new roof's structural integrity. Although plywood had already been
attached to the trusses along with two layers of fifteen pound roofing
felt, the architect instructed United not to place the shingles on the
roof until the structural integrity of the roof had been determined. The
county architect feared that the additional weight of the shingles could
potentially cause the damaged trusses to collapse.

On November 24, 1992, the County terminated United as the con-
tractor for the job in part as a result of the dispute over the damaged
trusses. Subsequently, the County made a demand upon United's
surety, Ohio Casualty Insurance Company, to complete the renovation
project in accordance with the terms of its performance bond. On Feb-
ruary 19, 1993, Ohio Casualty agreed to hire a new contractor to com-
plete the project. About a month later, the wind and rain storm struck.
On April 7, 1993, the new contractor retained by Ohio Casualty com-
menced work on the DSS building. In July of 1993, Ohio Casualty
began to inquire as to whether some or all of the damage sustained
by the building might be covered by a primary insurance policy. In
response to that inquiry, the county manager sent the assistant county
manager in charge of insurance claims the following memorandum:

          During the period of November 1992-June 1993, the old
          Social Services building suffered exposure to the elements
          due to the fact that it was not under roof for most of that
          time.

          Please advise me what organization was our first party
          insurance carrier during this period of time and if any claim
          for damages was filed.

J.A. 276 (emphasis added). It was clear at the time of the storm dam-
age that the DSS building was included as insured property under a
valid Charter Oak commercial property insurance policy. Although
the County had not filed a claim with Charter Oak for the March dam-
age, the assistant county manager stated that she immediately con-

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tacted Charter Oak's local agent the day she received the above
inquiry from the county manager. The local agent responded that cov-
erage would not be available for the water exposure caused by the
storm. In mid-August, the assistant county manager received a letter
from Ohio Casualty stating that Ohio Casualty intended to seek recov-
ery of $175,000 in storm damages to the DSS building. That letter
was ultimately forwarded to Charter Oak and received on August 25,
1993. After its investigation, Charter Oak ultimately denied the claim.
Shortly thereafter, Charter Oak instituted this declaratory judgment
action.

Subsequent to the filing of the declaratory judgment action, by
motion of the County, this action was consolidated with a second
action entitled Ohio Casualty Co. v. United Contractors of Kinston,
Inc., (No. 4:94-CV-38-F2). Although not a party to this appeal, Ohio
Casualty was also a defendant in the Charter Oak case below. Further,
the County was a defendant in both the Charter Oak and the Ohio
Casualty action. The district court issued an order granting the Coun-
ty's motion to consolidate these cases on April 4, 1995. Although
these cases were consolidated for trial, they involved separate legal
issues. Charter Oak's motion for summary judgment was granted by
order of September 13, 1995. The court held that under North Caro-
lina insurance law, the County's delay in notifying Charter Oak of the
storm damage to the DSS building constituted a prejudicial bad faith
delay and further that even if the late notice was not prejudicial, the
express terms of the policy excluded coverage because the plywood
and felt placed on the trusses did not constitute a roof. The County
subsequently appealed.

II.

We agree with the district court that the County's notice of a poten-
tial loss provided to Charter Oak more than five months after the
alleged water damage had been sustained, combined with the fact that
the damage had been completely repaired by the new contractor when
notice was finally received by Charter Oak, violated the terms of the
insurance contract and constituted a bad faith delay thereby excluding
coverage. The policy at issue provided that the insured must give
Charter Oak "prompt notice of the loss or damage." J.A. 279 (Charter
Oak Commercial Property Insurance Policy No. 883G0935, Coverage

                    4
Form No. CP T1 00 10 91, para. E.3.(a)(2)). The requirement that an
insurer "be given notice of a relevant event`as soon as practicable'
is an essential part of the insurance contract." Great American Ins.
Co. v. C. G. Tate Constr. Co., 279 S.E.2d 769, 775 (N.C. 1981) (here-
inafter "Great American I").

Under North Carolina law, whether an insured has given timely
notice is determined by a three step test. The first step is "whether the
notice was given as soon as practicable." Id. at 776. Second, the anal-
ysis involves deciding "whether the insured has shown that he acted
in good faith . . . ." Id. at 776. Finally, "[i]f the good faith test is met
the burden shifts to the insurer to show that its ability to investigate
and defend was materially prejudiced by the delay." Id. at 776.
"[U]nless the insurer's allegations that notice was not timely are
patently groundless, the first part of the test is met by the fact that the
insurer has introduced the issue to the court." Great American Ins.
Co. v. C. G. Tate Constr. Co., 340 S.E.2d 743, 747 (N.C. 1981) (here-
inafter "Great American II").

The first part of this test was met by Charter Oak's raising what
was clearly not a patently groundless delay issue with the district
court. Even if the County could carry its burden on the second prong
of the test, the good faith element, the County's five month delay in
reporting the loss to Charter Oak materially prejudiced its ability to
investigate the claim, especially in light of the fact that the alleged
severe water damage was already completely repaired by the time of
notice. Factors relevant to determining prejudice include physical
changes to the location, the ability of experts to investigate the loss,
and the preparation and preservation of evidence related to the loss.
See Great American I, 279 S.E.2d at 776. Although the loss allegedly
occurred as the result of a fierce March wind storm, the new contrac-
tor hired by Ohio Casualty began working on the building in April.
By June, all of the water damaged sheet rock, duct work, insulation
and roof sheeting had been removed. By the end of June, the truss
repairs were complete, the roof had been re-sheeted and shingled and
new interior insulation and sheetrock were being installed. All of this
work was accomplished prior to Charter Oak's local agent receiving
notice of a potential claim in the latter part of July. The prejudice
associated with the length of delay and the extent of construction and
repairs is further exacerbated by the fact that even prior to the March

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storm, there were numerous indications that the building had sus-
tained interior water damage because it had been covered for many
months solely by the plywood sheeting and roofing felt. J.A. 271.
Further, there is no clear evidence of the condition of the building at
the time of the loss or immediately prior to the loss. In actuality, it
appears that the County expressed little concern about the damage to
the building until Ohio Casualty indicated its intentions to recoup
some of the money spent to repair the extensive water damage. As the
North Carolina Supreme Court noted in Great American II, "Willful
ignorance does not exemplify good faith." Great American II, 340
S.E.2d at 749 n.6. This court agrees with the district court that the
County's five month delay under the circumstances of this case con-
stituted a bad faith delay that materially prejudiced the insurer's abil-
ity to investigate and defend the claim.

III.

We also agree with the district court that the plywood sheeting and
the roofing felt covering the DSS building did not constitute a roof
and that the damage was excluded under the policy. The policy
clearly provides:

          1. We will not pay for loss or damage to:

          ...

          c. The interior of any building or structure or to
          personal property in the building or structure,
          caused by or resulting from rain, snow, sleet, ice,
          sand, or dust, whether driven by wind or not,
          unless:

          (1) The building or structure first sustains
          damage by a Covered Cause of Loss to its roof
          or walls through which the rain, snow, sleet, ice,
          sand or dust enters.

J.A. 280 (Charter Oak Commercial Property Insurance Policy No.
883G0935, Coverage Form No. CP T1 08 10 91, para. C.1(c)(1))

                     6
(emphasis added). Therefore, under the policy, before Charter Oak is
liable for interior water damage, there must be damage to the build-
ing's roof from a covered loss. In this case, there was no permanent
roof on the building because the county architect halted completion
of the roof construction long before the March storm.

Further, we do not agree with the Appellant that there exists any
ambiguity in the word "roof." As noted by the California Court of
Appeals in Diep v. California Fair Plan Ass'n , 19 Cal. Rptr.2d 591
(Ct. App. 1993):

          While "roof" has many different meanings, (e.g., roof of
          the mouth) dictionary definitions are consistent with respect
          to that which people usually expect to find on top of a build-
          ing. The Random House College Dictionary (1982) defines
          roof as "the external upper covering of a house or other
          building." (At p. 1145). Webster's Third New International
          Dictionary (1976) defines it as "the outside cover of a build-
          ing or structure including the roofing and all the materials
          and construction necessary to maintain the cover upon its
          walls or other support[.]"(At p. 1971) The American Heri-
          tage Dictionary, Second College Edition (1982) defines it as
          the "exterior surface and its supporting structures on the top
          of the building." (At p. 1070)

          We could go on, but a roof is commonly considered to be
          a permanent part of the structure it covers. Roof is not an
          ambiguous or vague word.

Id. at 593 (emphasis added); see Camden Fire Ins. Ass'n v. New
Buena Vista Hotel Co., 24 So. 2d 848, 850 (Miss. 1946) (en banc)
("To be, or become, a roof, its construction or reconstruction must
have reached the point where a reasonably prudent householder
would consider it, if left in that condition for a month or months, or
longer, as adequate against all risks of wind and rain which could be
reasonably anticipated as likely to happen . . . ."), aff'd on suggestion
of error review, 26 So. 2d 174 (Miss. 1946) (en banc); cf. New Hamp-
shire Ins. Co. v. Carter, 359 So. 2d 52, 54 (Fl. Dist. Ct. App. 1978)
("It is not reasonable to presume that the parties intended that the cov-
erage provided against loss from certain limited risks would be

                    7
expanded to provide coverage against any and all risks merely by the
act of the insured making repairs."). Therefore, we agree with the dis-
trict court that the plywood sheeting and felt paper covering the DSS
building at the time of loss was not a roof as intended by the parties
under the insurance contract. Therefore, water damage sustained to
the interior of the building was excluded under the Charter Oak pol-
icy.

IV.

For the foregoing reasons, we conclude that the county's delay in
notifying Charter Oak of the alleged loss constituted a bad faith and
prejudicial delay and further that any damage the DSS building sus-
tained as a result of the March 1993 storm was excluded under the
policy because the building was not covered by a permanent roof at
the time of loss. Therefore, we affirm the judgment of the district
court.

AFFIRMED

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