Amended Motion for Judgment filed March 26, Excerpt Transcript of Trial held before the Honorable Jerome James on March 30,

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2 TABLE OF CONTENTS VOLUME ONE Appendix Page Amended Motion for Judgment filed March 26, Valley Forge's Second Grounds of Defense to Amended Motion for Judgment filed January 6, Excerpt Transcript of Trial held before the Honorable Jerome James on March 30, Testimony of Robert Layton Direct Examination... I 0 I Testimony of James Ripley, Jr. Direct Examination Cross Examination Re-Direct Examination... 2I3 Re-Cross Examination Testimony of Joseph 0. Stokes Direct Examination Excerpt Transcript of Trial held before the Honorable Jerome James on March 3I, I Testimony of James W. Smith Direct Examination Cross Examination Re-Direct Examination Re-Cross Examination

3 Testimony of Donald Otto Direct Examination Cross Examination Re-Direct Examination Re-Cross Examination Testimony of G.W. Blanchard, Jr. Direct Examination Cross Examination Testimony of McClanahan Ingles Direct Examination Cross Examination Re-Direct Examination VOLUME TWO Excerpt Transcript of Trial held before the Honorable Jerome James on April 1, Testimony of John F. Fitzpatrick Direct Examination Cross Examination Re-Direct Examination Re-Cross Examination Testimony of Tom Donnelly Direct Examination Cross Examination Testimony of Richard Potts Direct Examination Cross Examination ii

4 Re-Direct Examination Re-Cross Examination Excerpt Transcript of Trial held before the Honorable Jerome James on April 2, Testimony of Jesse H. Brown, Jr. Direct Examination Cross Examination Re-Direct Examination Testimony of J.P. Turner Direct Examination Cross Examination Trial Exhibits: VOLUME THREE Exhibit No. 1 - Commercial Insurance Application for Willoughby Harbour Marina, Inc. dated January 30, Exhibit No. 2- Policy No. B issued by Valley Forge to Lower Chesapeake Associates for the period April 1, 1996 to April 1, Exhibit No.3- Valley Forge's Responses to Plaintiffs First Request for Admissions No Exhibit No. 4 - The Schematic of the Marina Depicting the breakwater and piers A, B, C, and D : ~ Exhibit No.5- Photographs produced in response to Valley Forge's Second Request for Production of Documents Exhibit No.6- Computation of Replacement Cost and Debris Removal prepared by James Smith iii

5 Exhibit No Report from National Centers for Environmental Prediction and National Weather Bureau Exhibit No. 19- Recorded Statement of Michael Whitt Exhibit No Photographs of the Marina taken by C. Richard Potts Exhibit No Resume and Field Notes of C. Richard Potts Exhibit No. 23 -Field Notes of Red Brown Exhibit No Estimates of Damage prepared by Salmons Dredging Corporation Exhibit No Recorded Statement of Jim Ripley Defendants Exhibit No. 8 - Deposition Transcript of Michael Whitt taken on March 5, Except Transcript of Proceeding held before the Honorable Jerome James on April 19, Judgment Order entered on May 4, Notice of Appeal filed Assignments of Error... ~ Assignments of Cross-Error iv

6 1 VIRGINIA: 2 IN THE CIRCUIT COURT OF THE CIT LOWER CHESAPEAKE ASSOCIATES, 6 a limited partnership, tja 7 WILLOUGHBY HARBOR MARINA, and 8 LITTLE BAY, LTD., 9 Plaintiffs, AT LAW NO. 10 v. L VALLEY FORGE INSURANCE COMPANY, 12 Defendant TRANSCRIPT OF PROCEEDINGS BEFORE: ;- ---:- -, r; V 0 L UM E I I I r--=j u ~~ j! j Norfolk, Virgin.i~~ 1-!.. ~ r= ~~ -- :::-::,~,... ~J... ~. I : 1,_ LL-! ; ;. JUN April 1, 1~f2~~~ L_. :.... HORFOLI\ CiRCuiT COUKf CLEi1!\ j HONORABLE JEROME J ~~ ~..,. JUDGE D:G _.J Registered Professional Reporters 24 Telephone: (757) Norfolk, Virginia 421

7 405 1 Appearances: 2 3 On behalf of the Plaintiffs: 4 FRED D. SMITH, JR., ESQUIRE 5 Young, Haskins, Mann, Gregory & Smith Starling Avenue 7 Martinsville, Virginia (540) On behalf of the Defendant: 11 W. JOSEPH OWEN, III, ESQUIRE 12 DERRICK THOMAS, ESQUIRE 13 Cowan & Owen Hugenot Road 15 Richmond, Virginia (804) TAYLOE ASSOCIATES, INC.. 4Z2

8 406 1 I N D E X 2 W I T N E S S 3 4 ON BEHALF OF THE DEFENDANT: DIRECT CROSS RED. REC. 5 John Fitzpatrick Tom Donnelly Richard Potts E X H I B I T S 10 ON BEHALF OF THE DEFENDANT: 11 No. Description Page 12 2 Photograph Photograph Photograph Photograph Photograph Photograph Transcript SA Photographs Videotape Z3

9 Testimony of Jolm Fitzpatrick I Direct (The proceedings reconvened at 9:00 a.m.) 2 THE COURT: All right. Is the defense 3 ready to proceed? 4 MR. OWEN: Yes, sir, we are. 5 THE COURT: You may. 6 MR. OWEN: All right. I would call 7 Mr. John Fitzpatrick. 8 THE COURT: Okay. All right. Good 9 morning, Mr. Fitzpatrick. 10 THE WITNESS: Good morning. 11 THE COURT: Have you been sworn earlier? 12 MR. FITZPATRICK: No. 13 JOHN FITZPATRICK, called as a witness on 14 behalf of the defendant, having been first duly sworn, 15 was examined and testified as follows: 16 THE COURT: That is an exhibit in front 17 of you. You may be referring to that. All right. 18 DIRECT EXAMINATION 19 BY MR. OWEN: 20 Q. Mr. Fitzpatrick, would you tell the Court 21 your full name, please. 22 A. John F. Fitzpatrick. 23 Q. Mr. Fitzpatrick, in September of what was your job, occupation? 25 A. An insurance adjuster. 424

10 Testimony of Jolm Fitzpatrick ~:rect Q. And who were you working for? 2 A. Reliable Claims Company. 3 Q. What is Reliable Claims Company? 4 A. They are a company that specializes in 5 property damage from catastrophic events. 6 Q. How long have you been working in the 7 field of adjusting for catastrophic events? 8 A. since Q. Where do you live, Mr. Fitzpatrick? 10 A. Omaha, Nebraska. 11 Q. And when you have an event such as 12 Hurricane Hugo or Hurricane Fran, what's your normal 13 procedure in terms of going to a site? 14 A. I'm on a list of various claims 15 companies. I get calls from them and accept an 16 assignment to work claims for them in that particular 17 storm. 18 Q. Since the 1970s- when you began doing this 19 work, approximately how many times have you been 20 called on to go to a marina in the wake of a hurricane 21 or some tropical storm? 22 A. Fifty. 23 Q. Now, who hired you to go to the East 24 Coast in the wake of Hurricane Fran? 25 A. Don Wallen (phonetic). 4Z5

11 Testimony of Jolm Fitzpatrick I Direct Q. Okay. Did you -~ were you working for 2 any particular insurance company or group of them? 3 A. When Don called, I had some claims I 4 finished up for Crawford & Company. 5 Q. And what was your area of responsibility 6 geographically? 7 A. In Hurricane Fran? 8 Q. Yes, sir. 9 A. I was -- I stayed in Chester, Virginia, 10 and I worked claims in Virginia, West Virginia, North 11 carolina, Washington, D.C., Maryland, Pennsylvania. 12 Q. In that capacity as a claims adjuster 13 following Hurricane Fran, did you have occasion to go 14 to Willoughby Harbor Marina? 15 A. Yes. 16 Q. When did you first go to Willoughby 17 Harbor? 18 A. I don't know the exact date. It was 19 within a few days of receiving the loss notice. 20 Q. When you arrived at the marina, who met 21 you there? 22 A. Mr. Ripley, and there was also a 23 Mr. Smith. 24 Q. Would that be James Smith? 25 A. Yes. 426

12 Testr::ony of Jolm Fitzpatrick I [i~r~o?\:t Q. What did you understand Mr. Smith's 2 occupation to be at the time? 3 A. He was referred to as an engineer and 4 someone that dealt with marinas. 5 Q. Did you perform an inspection of the 6 marina? 7 A. Yes. 8 Q. Did Mr. Ripley or Mr. Smith point out 9 areas of concern that they had concerning the docks? 10 A. Yes. 11 Q. Tell me what you observed during that 12 inspection of the marina. 13 A. The dock system showed a lot of 14 deterioration. Dry rot existed throughout the 15 system. There had been repairs over time. Boards 16 were scabbed onto the dock. 17 Q. What do you mean by boards scabbed onto 18 the dock? 19 A. Scabbing is a term that's -- it's 20 fastening a board, giving additional strength to a 21 structure. 22 Q. If you would turn to the exhibit book, 23 Mr. Fitzpatrick, under Tab 21 there are four 24 sections. If you would turn to the fourth segment, 25 and it's about halfway through. The identification on L\27

13 Testimony of John Fitzpatrick I Direct the pictures is 034/35, P31, 034/35, P32. 2 A. Okay. I see those. 3 Q. Do you see anything in those pictures 4 that is an example of scabbing? 5 A. In 032/33, Page 29? 6 Q. No. Actually -- oh, okay. 7 A. Appears to be a scab board on the 8 stringer. 9 Q. Okay. 10 MR. SMITH: I'm lost. 11 THE WITNESS: Page or Picture 29, 12 P THE COURT: But it's 032/ THE WITNESS: 032/33, would be in the 15 lower right-hand portion of the photo along the 16 stringer. 17 THE COURT: Just part of the scabbing? 18 THE WITNESS: Yes. That board would be a 19 scab. 20 BY MR. OWEN: 21 Q. All right. Turn to the next page. 22 A. 23 Q. 24 A. 25 Q. And there is -- Do you see examples of scabbing there? Yes. And could you tell us what they are? 428

14 Testimony of Jolm Fitzpatrick I Direct A. They appear to be two-by-sixes, 2 two-by-eights. They're scabbed along the boardwalk of 3 the dock. 4 THE COURT: Now, for the record, we are 5 looking at 034/35, Pages 31 and 32? 6 THE WITNESS: That is correct. 7 THE COURT: You may continue. 8 BY MR. OWEN: 9 Q. You can go a couple of pages to where it 10 has 048, 2/1 and -- Picture 2/1 at the top of the 11 page. 12 A. Yes. There is scabbing on there. You 13 can see the dry rot on the end of the boards, and the 14 two-by-eights are fastened to them to hold them 15 together. 16 Q. Mr. Fitzpatrick, was the dry rot 17 condition you described there in that picture, was 18 that typical of what you observed when you went to the 19 marina the first time? 20 MR. SMITH: I object to the form of the 21 question. It's too vague and ambiguous, calls for a 22 broad conclusion unsupported by any -- we have got 23 photographs. He can -- to make a broad sweep I object 24 to. There has been no foundation for him to make that 25 kind of broad, sweeping statement. &\Z9

15 Testimony of Jolm Fitzpatrick I Direct MR. OWEN: Your Honor, he said he went 2 over the entire dock. He's described that he 3 initially saw deterioration. He described the 4 scabbing process. 5 We're in the process now of identifying 6 exactly what scabbing was, and I think my question 7 that is the dry rot typical of what he observed an 8 appropriate question. 9 THE COURT: All right. Because he has 10 testified that he went to the marina within a few days 11 of the notice of loss claim and Mr. Smith and 12 Mr. Ripley met him there and pointed out various areas 13 of concern and he inspected; his inspection showed a 14 lot of deterioration and dry rot existed throughout 15 the system, and then he talked about the scabbing, I 16 will allow it. 17 THE WITNESS: I can answer the question? 18 BY MR. OWEN: 19 Q. Yes, sir, you may. 20 THE COURT: I'm sorry, you may. 21 THE WITNESS: I'm sorry, first time. 22 THE COURT: No problem. 23 THE WITNESS: The dry rot here is the 24 same or in some areas of the dock the dry rot was 25 actually worse than is evidenced here. 430

16 T~stitnony of Jolm Fitzpatrick I Dire~ The one board underneath the scabbing 2 where you can see a chunk of the end of the board 3 that's missing, there was quite a bit of that 4 throughout the dock system. The boards were soft 5 enough that I was ablg to put my finger into a board; 6 it was just very little resistance. Just a lot of 7 old, unattended -- the dock was just poorly 8 maintained, from its appearance. 9 BY MR. OWEN: 10 Q. Now, the -- you talked about this board 11 that you could stick your fingers in and crumble up. 12 Where -- was that a stringer board, or was that dock 13 boards? 14 A. I believe that was a board on the dock, I 15 believe it was. I don't believe it was a stringer. I 16 believe it was one of the boards on the walk. 17 Q. Mr. Fitzpatrick, when you were doing your 18 inspection and I am going to ask you to look at the 19 next picture. Do you recognize those pictures on the 20 next page? And I am referring to 049, 2/3 and 049, 21 2/5. 22 A. Yes. 23 Q. Was this -- did you observe this 24 condition yourself when you were there at the dock? 25 A. Yes. There were areas where the boards 431

17 Testimony of Jolm Fitzpatrick I Direct were missing and boards scabbed over so that you could 2 walk from one area to the next. 3 Q. Did you make a close examination of the 4 boards that were missing and the stringer boards, 5 where those boards were missing? 6 MR. SMITH: Object to the leading 7 question. 8 MR. OWEN: Judge, I don't think that's 9 leading. 10 THE COURT: I don't know how he could 11 really state it in another way and have it precise 12 enough for the witness to answer, so I'll overrule 13 it. 14 THE WITNESS: Yes, I inspected the dock 15 system. 16 BY MR. OWEN: 17 Q. And what did you find as far as the 18 condition of the stringer boards on D dock? 19 A. D dock appeared to be one of the worst. 20 The stringer boards the stringer boards and the 21 walkway, they had more scabbing. 22 The stringers were, in some cases, rotted 23 so severely that they were there probably because of 24 the scabs more than because of the stringer itself. 25 Q. Now, you say this -- you got there a day 432

18 Testimony of Jolm Fitzpatrick I L:.; '.:ct or two after the notice of loss. How long, 2 approximately, would that have been after the storm on 3 September the 6th, 1996? 4 A. I would say within a week, ten days. 5 Q. Mr. Turner, did you also go on the c 6 docks? 7 THE COURT: I'm sorry, you said Turner. 8 MR. OWEN: I'm sorry, Mr. Fitzpatrick. 9 THE COURT: Okay. 10 THE WITNESS: Yes, I did. 11 BY MR. OWEN: 12 Q. I'm going to ask you to look at Tab 3, 13 and if you would look at all of the pictures in Tab A. Okay. 16 Q. Mr. Turner, do those pictures accurately 17 show the condition of c dock when you went to make 18 your initial inspection following the storm? 19 A. Yes, they do. 20 Q. Just for the record, I am going to get 21 you to look at Tab 4 as well and do the same exercise 22 with all those pictures. 23 A. Okay. Okay. 24 Q. Mr. Fitzpatrick, do the photographs under 25 Tab 4 accurately depict the condition of D dock when 433

19 Testimony of Jolm Fitzpatrick I Direct you saw it some ten days or so after the storm? 2 A. Yes, they do. 3 Q. Mr. Turner, look at -- I'm sorry, 4 Mr. Fitzpatrick. I am going to get that right in a 5 minute. 6 A. I am kind of honored to be identified as 7 Mr. Turner. 8 Q. I understand. I apologize for insulting 9 you, Mr. Fitzpatrick. 10 Mr. Fitzpatrick, in looking at the 11 pictures under Tab 3, look at the one that's 12 designated C9, 2/ A. Under Tab 3? 14 Q. Yes, sir. It's like the third sheet or it isn't like the third sheet. It is the third 16 sheet. 17 A. Okay. Yes, I have it. 18 Q. What does that -- did you see the 19 depiction or the dock boards in the condition as shown 20 in that picture when you were making your inspection 21 of D dock c dock? 22 A. Yes.. This is reflective of the condition 23 of the dock. In fact, the whole dock system would be 24 very similar to this photograph. 25 Q. Looking at the page before with C3, 434

20 Testimony of J olm F itzp I Direct /32 2 A. Yes. 3 Q. -- did you examine under the planks that 4 were up like that? 5 A. Yes. 6 Q. Did you examine the stringer boards 7 underneath them? 8 A. Yes, I did. 9 Q. And what was the condition of the 10 stringer boards under the boards that you saw popped 11 up similar to this one? 12 A. In some cases, they were so dry rotted it 13 was surprising that they were still there. Many of 14 them were scabbed underneath to try to maintain that 15 structural integrity. 16 Q. Mr. Turner, I'm going to Mr. Fitzpatrick. 18 MR. OWEN: I am catching your name 19 disease, Fred. 20 BY MR. OWEN: 21 Q. Mr. Fitzpatrick, would you turn, it's 22 about five sheets from the end in Tab A. C108 and Clll? 24 Q. Yes, sir. Was this the condition of C 25 dock that you observed on your initial visit to the 435

21 Testitnony of Jolm Fitzpatrick I Direct site? 2 A. Yes, it was. 3 Q. Look at the next sheet, if you would, 4 please. 5 A. Okay. 6 Q. The C111/112, Pictures 3/16 and 3/17, in 7 making your inspection, do those pictures accurately 8 show what you observed in that area as far as the 9 stringer boards were concerned? 10 A. Yes, they do. 11 Q. Describe what that is, if you would, 12 please. 13 A. That's dry rot to the extent where pieces 14 of that board have rotted away; they're not there. 15 Q. Mr. Fitzpatrick, in looking at that, when 16 you saw that, did you see any evidence where the board 17 had been in place and was broken, or was it simply 18 rotted away? 19 A. The board appeared to have just been 20 rotted away. The boards that were as you can see 21 in Picture C111/112, they are scabbed over that are 22 holding that section together. 23 As you look to the lower right-hand 24 corner of that, you can observe part of the wood there 25 that is a lighter color, and that was -- that's where 436

22 Testimony of John Fitzpatrick I Dirt:,. r a scab was. The lighter color would indicate that the 2 scab had been there for some time. 3 The lighter color is caused by the board 4 being in place, the sun oxidizing the wood so the wood 5 underneath that board, you can see a -- a print of 6 where a scab was, so these scabs appear to have been 7 there for some time, definitely much longer than the 8 week, ten days from the hurricane coming in and my 9 making this observation. 10 Q. Turn to the next page, if you would, 11 please, Pictures 3/19 and 3/ A. Okay. 13 Q. Describe -- well, let me ask you this: 14 Did you observe this condition on your first visit to 15 the marina? 16 A. Yes, I did. 17 Q. Describe what the top picture shows as 18 far as the wood there. 19 A. There is a stringer that is in serious 20 deterioration. Lower right-hand corner of the photo 21 you can see a missing scab board, which would be an 22 area where a board was there and it was there long 23 enough not to be sun bleached, and then there are two 24 other scabs that were -- that would be holding that 25 section together. 437

23 Testimony of Jolm Fitzpatrick I Direct And the boards -- the walkway boards, the 2 stringer is so deteriorated there would be no place 3 for the walkway boards to be fastened to the stringer 4 because of the dry rotted situation. 5 The dry rot on that stringer appears to 6 be severe enough, regardless of the type of fastener, 7 whether it be a nail, staple, or bolt, a strap, there 8 would be no substance there in that stringer to hold a 9 board that you would be able to walk on. And the 10 scabs are fastened to the board on the walkway, not 11 the stringer. 12 Q. What about the lower picture, what does 13 that show? 14 A. Shows severe deterioration to the 15 stringer. The dry rot, there's a fastener that is 16 backing out because there's not enough strength in the 17 stringer to hold the fastener in. 18 The walkway board on the lower left part 19 of the photograph appears to be up, separated from the 20 stringer because there would be nothing for it to for any type of fastener to go through the walk board 22 and into the stringer. 23 There's a hole in that board that appears 24 that there was a fastener in there at one time. The 25 fastener is missing. 438

24 .i ~ :~titnony of Jolm Fitzpatrick I Direct Q. Mr. Fitzpatrick, I'm going to ask you to 2 flip over to Tab 5. Hold your hand where you are, and 3 you are going to come back to that. I am going to ask you to look at Tab 5 and look at Picture 16 under Tab 5. A. Okay. Q. Mr. Fitzpatrick, is this the same area that we were just looking at in Pictures Cl11 and 112? A. Appears to be, yes. Q. And looking at the middle right-hand portion of picture -- or the lower picture on Page 16, is that the stringer board you were talking -- I mean, the scab board you were talking about? A. Yes. Q. Mr. Fitzpatrick, if you would look at the 16 next picture. 17 A. Page 17? 18 Q. No, sir, I'm sorry, thank you. Let's go 19 back to Tab 3 where we were on the other set of 20 pictures. 21 A. Okay. 22 Q. Looking at the next page, at the bottom 23 it says, c (end), 3/ A. Yes. 25 Q. Do you see that? TAYLOE AS'~~ATES, INC.

25 Testimony of John Fitzpatrick I Direct A. Yes. 2 Q. Did you observe that condition when you 3 made your inspection? 4 A. Yes, I did. 5 Q. Describe for us, if you would, please, 6 the condition of the stringer boards underneath the 7 boards that we see displaced here. 8 A. Again, they showed severe deterioration 9 from dry rot and inability to hold fasteners. The 10 boards that were fastened to them had been scabbed to 11 gain that fastening strength. 12 Q. Did you make any observations of any of 13 the joints of the stringer boards underneath this T 14 area end of c dock? 15 A. I believe I did specifically at this 16 particular area. I cannot specifically recall. 17 Q. Would you flip to Tab 4, I believe that 18 first picture there? 19 A. I don't have a photograph under Tab Q. I'm sorry, it's -- it's Tab 4 under the 21 group where we were just looking at. 22 A. Okay: I'm there. 23 Q. Do you recognize that picture at the 24 bottom? 25 A. Yes. That's the attachment system that 4~0

26 Testimony of Jolm Fitzpatrick I Direct connected the stringers in the dock. It was a hinge. 2 This was a floating dock, and that hinge allowed the 3 docks to float as the water moved and waves come in 4 and out. 5 Q. Did you observe yourself the condition of 6 that stringer board as shown in this picture? 7 A. Yes. Again, due to dry rot, the ability 8 for the hinge or the fasteners on the hinge to 9 maintain the structural integrity of the dock was 10 compromised by the dry rot. 11 Q. Would you turn over and look at the it s two or three back. rt s Dll/12, P A. Yes. 14 Q. What does that picture describe? 15 A. That s a finger along the slips. rt s 16 being held in place by scabs. 17 Q. Did you observe any other finger piers 18 such as this being held in place by scab boards? 19 A. Most of them were in place by some type 20 of a scab. 21 Q. Mr. Fitzpatrick, how widespread was the 22 deterioration that you ve described and identified 23 through these photographs as far as c and D dock were 24 concerned? 25 A. It was throughout the c and D dock 441

27 Testimony of John Fitzpatrick I D~ect system. The deterioration, it was just prevalent on 2 the whole walkway. 3 Q. Mr. Fitzpatrick, as part of your visit to 4 the marina, did you make any inspections or 5 observations as far as wind damage to any of the 6 buildings and structures? 7 A. Yes. The building where Mr. Ripley's 8 office had roughly a half dozen shingles that were 9 either raised or missing, and I recall about 12 foot 10 of soffit that had been blown up, some of it still 11 there and a couple of pieces missing. 12 Q. Mr. Fitzpatrick, would you look at 13 Your Honor, did we number Mr. Otto's assessment as 14 26? 15 THE COURT: I believe we numbered it as MR. OWEN: All right. 18 THE COURT: Does that sound familiar? 19 MR. OWEN: I couldn't remember whether it 20 was 22 or 26. I think we did call it THE COURT: Right. Do you agree, 22 Mr. Smith? 23 MR. SMITH: I beg your pardon? I'm 24 getting mine. 25 THE COURT: All right. 44Z

28 T L>.!n1ony of Jolm Fitzpatrick I Direct MR. OWEN: He may not -- the witness may 2 not have this. May I approach? 3 THE COURT: I can give him mine. 4 BY MR. OWEN: 5 Q. In looking at that Exhibit 22, there's a 6 heading of building damage. Do you see that? 7 A. Yes, I do. 8 Q. The description here, how does that 9 compare with what you observed? 10 A. That appears to be exactly the same. I 11 mean, some loss of shingles, which is what I just 12 basically said, and soffit. And the gable end slats 13 broken, I don't recall observing that, but the soffit 14 and the shingles would be identical to what I 15 observed. 16 Q. Now, why did you -- was that the only 17 building that you made observations of in terms of 18 wind damage? 19 A. No. You always try to look at adjoining 20 properties to see if the damage on those properties is 21 the -- how it compares to the property you're 22 inspecting. 23 And I did not observe any damage to the 24 adjoining properties that would be similar to the 25 damage on the building. 443'

29 """ Testimony of Jolm Fitzpatrick I Direct I looked for things like gutter, 2 shutters, shingles, the structural members or 3 attachments to the members that are more susceptible 4 to wind damage, and I did not observe any damage 5 similar to the damage to the office building on the 6 adjoining properties. 7 Q. After your inspections, did you have any 8 discussions with Mr. Ripley and Mr. Smith about the 9 observations you-all had shared? 10 A. I had asked Mr. Smith if he had prepared 11 an estimate. He said he had not. He took out a 12 yellow legal pad and did a square foot assessment, and 13 at that point he indicated a loss in excess of a 14 million dollars. My authority in this particular 15 storm was $50,000, so that pretty well ended our 16 conversation. 17 Q. And what did you do at that point? 18 A. Told him that I would come back and meet 19 with him again. I went to a telephone and called the 20 Wilmington office, which was the office that was set 21 up as a temporary office to handle the storm claims, 22 and reported to them that I had a loss in excess of my 23 $50,000 authority, and they told me that there would 24 be a co-adjuster -- or they told me another adjuster 25 would be assigned to it and that I would co-adjust it.

30 Testimony of Jolm Fitzpatrick I Cross Q. And was there another adjuster assigned? 2 A. Yes, there was. 3 Q. Who was that? 4 A. J. P. Turner. 5 Q. Did you and Mr. Turner make subsequent 6 trips? 7 A. Yes, we did. 8 Q. Mr. Fitzpatrick, when you were making 9 your observations of the scabs on the finger piers, 10 did you notice any discoloration under the boards that 11 you can recall? 12 A. There was discoloration, not only on the 13 finger piers, but on the walkways and even some of the 14 stringers, and the discoloration is a result of the MR. SMITH: Object to -- this witness has 16 not been offered as an expert. 17 MR. OWEN: That's fine. 18 THE COURT: All right. 19 MR. OWEN: Thank you, Mr. Fitzpatrick. 20 That's all the questions that I have at this point. 21 THE COURT: Okay. Mr. Smith. 22 CROSS-EXAMINATION 23 BY MR. SMITH: 24 Q. Good morning, Mr. Fitzpatrick. 25 A. Good morning. How are you? 4 \5

31 Testimony of John Fitzi...:k I Cross Q. Thanks. 2 THE COURT: Mr. Smith, do you mind if I 3 get another pen? 4 MR. SMITH: Certainly. 5 THE COURT: I'll be right back. 6 (Pause in proceedings.) 7 THE COURT: All right. 8 BY MR. SMITH: 9 Q. Mr. Fitzpatrick, as I understand your 10 response to Mr. owen's questions, you've been 11 adjusting damage claims to marina structures for a 12 good number of years? 13 A. I'm a property adjuster, and over my 14 property adjusting experiences I have adjusted a 15 number of marina claims, yes. 16 Q. And have a number of them been wooden, 17 floating structures? 18 A. Yes. 19 Q. Am I correct, Mr. Fitzpatrick, that you 20 know from your own experience that a board or 21 structure with some decay in it will give way in a 22 storm or break in a storm, correct? 23 A. A structural member with deterioration; 24 is that your statement? 25 Q. I will ask the question again. ~ \6

32 Testimony of John Fitzpatrick I Cross MR. OWEN: Judge, the only interjection I 2 would interject at this time, Mr. Smith has gone 3 beyond asking facts into expert opinions. 4 I don't have an objection to doing it as 5 long as when I come back on redirect, if he has used 6 him as an expert, I can ask him that. 7 THE COURT: Is that okay with you, 8 Mr. Smith? 9 MR. SMITH: Sure THE COURT: All right. 11 MR. SMITH: -- to the extent I don't 12 believe I'm asking him an expert opinion. I am asking 13 him from his experience and observations from past 14 investigations. 15 MR. OWEN: He is asking causation. It's 16 a direct causation question that I was careful to 17 steer away from. 18 THE COURT: You are right. I believe it 19 calls for an opinion, so if you want to continue with 20 that line of inquiry, it will be with the 21 understanding that on redirect Mr. Owen or Mr. Thomas 22 will be permitted to; is that agreeable? 23 MR. SMITH: That's fine. 24 THE COURT: Okay. 25 BY MR. SMITH: 4 \7

33 -~titnony of John Fitzpatrick I Cross Q. Mr. Fitzpatrick, my question was from 2 your experience ~djusting storm damage claims to 3 wooden marina structures, isn't it true that a board 4 with some decay in it or structure with some decay in 5 it will give way or break in a storm? 6 A. I've seen steel posts twist in a storm 7 and I've seen wooden structures right next to the 8 steel posts that are unaffected, so whether the 9 material would have sustained some wear, some 10 deterioration or not I don't believe would be germane 11 to its sustaining an effect of weather -- or storm. 12 Q. Let me ask the question again, 13 Mr. Fitzpatrick. My question is from your experience 14 adjusting claims to wooden floating structures at 15 marinas, my question is from that experience isn't it 16 true that a board or a structure that has some decay 17 in it will give way under the forces of a storm? 18 Isn't that true? 19 A. If I understand your question correctly, 20 you're indicating that it's going to give way because 21 of its poor maintenance or poor condition? 22 Q. No. My question, Mr. Fitzpatrick, is 23 isn't it true from your experience from your adjusting 24 claims that wooden structures that have some decay in 25 them break from the forces of storms? 4 \8

34 Testimony of Jolm Fitzpatrick I Cross A. It's my experience that material may or 2 could break regardless of its condition, whether it 3 was brand new or had been there for a million years 4 and was in the most deplorable condition that exists, 5 they could or may break in a storm. 6 Q. And, similarly, a board that is brand 7 new, as you mentioned, could break in a storm? 8 A. Yes. 9 Q. And isn't it true -- and you have done 10 replacement cost adjusting over the years, have you 11 not? 12 A. That's correct. 13 Q. And isn't it true that the cost to 14 replace a deteriorated board or partially decayed 15 board that broke in the storm is the same as the cost 16 to replace a brand new board that broke in the storm? 17 A. Yes. 18 Q. Now, Mr. Fitzpatrick, would you agree 19 that one way to go about adjusting a claim like you 20 did in this case, like you participated in this case, 21 is to compare the condition of the property that you 22 are adjusting between what you find it to be at the 23 time you were there to what its condition was before 24 the storm? 25 A. Yes. 449

35 Testimony of.. ::)ln Fitzpatrick I Cross Q. In fact, that gives you the best 2 information about what the nature and extent of the 3 storm damage was, doesn't it? 4 A. It can. 5 Q. Now, in this case, Mr. Fitzpatrick, you 6 had Mr. Ripley on those piers and docks with you, 7 didn't you? 8 A. Yes, I did. 9 Q. You did not ask him what happened during 10 the storm, did you? 11 A. No, I did not. 12 Q. And you did not ask him what the 13 condition of the structures you were looking at were 14 before the storm, did you? 15 A. The deterioration from dry rot was my 16 observation. I did not specifically -- I did not say 17 to Mr. Ripley, was this dry rotted prior to the storm. 18 Q. Did you ask Mr. Ripley what broke during 19 the storm? 20 A. No, I did not. 21 Q. Did you ask Mr. Ripley if he had any 22 photographs or any information that would give you 23 some idea as to what the condition of the marina was 24 before the storm? 25 A. No. L\50

36 Testimony of John Fitzpatrick I Cross Q. Would you come down, Mr. Fitzpatrick? 2 I'd like to show you a couple of aerial photographs. 3 A. Okay. 4 Q. I represent to you, Mr. Fitzpatrick, this 5 is an exhibit that's been already introduced into 6 evidence. This is an aerial photograph made on 7 September the 15th, 1996, okay -- 8 A. Okay. 9 Q. -- about nine days after the storm. 10 From your walking these piers, do these 11 appear to be the ends of c and the ends of D? 12 A. Yes. 13 Q. And do these photographs accurately 14 depict the damage that you observed when you walked 15 those two piers? 16 A. They accurately depict the condition of 17 the piers that I witnessed, yes. 18 All right, sir. Now, Mr. Fitzpatrick, 19 let me show you an aerial photograph made one month 20 before the storm. Do you see any damage on Docks C 21 and D, Mr. Fitzpatrick? 22 A. On Dock D by the end of the ferry, there 23 appears to be some scabbing. There appears to be some 24 scabbing on the finger piers on dock D. On dock C I 25 can see some scabbing on some of the finger piers. 451.

37 Testimony of Jolm Fitzpatrick I Cross Q. Where do you see scabbing on the finger 2 piers, Mr. Fitzpatrick? 3 A. Let's see, this is dock c. 4 Q. Yes. 5 A. One, two, three, the fourth finger pier 6 you can see a board that's a little lighter in color. 7 Do you see where I'm pointing, along the stringer? 8 Q. I see one down along the stringer. 9 A. Okay. That appears to be a scab. 10 Q. I see. 11 A. The blow-up of this picture is such that 12 I can't see in the detail that I would if it were an 13 individual photograph of the dock. 14 Q. Mr. Fitzpatrick, do you see any storm 15 damage or any damage like you saw when you were out 16 there on this photograph? 17 A. The scabs seem to be the same type of 18 condition that I did see. 19 Q. Is the scab storm damage, 20 Mr. Fitzpatrick? 21 A. No. 22 Q. So you don't see any storm damage on this 23 aerial photo, do you? 24 A. No. 25 Q. You see storm damage on this? i\sz

38 Testimony of John Fitzpatrick I Cross MR. OWEN: Excuse me. can 2 Mr. Fitzpatrick have a little space? 3 MR. SMITH: Excuse me, Mr. Fitzpatrick. 4 THE COURT: Sure. 5 BY MR. SMITH: 6 Q. Do you see storm damage on this 7 photograph, Mr. Fitzpatrick? 8 A. Yes. 9 Q. All right, sir. So some event happened, 10 Mr. Fitzpatrick, between August the 6th, 1996 and 11 September the 15th, 1996 to damage the ends of C and 12 D; isn t that correct? 13 A. I wish the photos were identical. The 14 photo prior to the storm is taken at an angle, and the 15 storm the photo that you are entering as the photo 16 of after the storm is directly above. 17 I cannot see the condition of dock D 18 between the ferry and the naval ship, so I can t make 19 a comparison on these photos. 20 Q. As to that section? 21 A. As to that section. 22 Q. But you can certainly make the comparison 23 on the other sections, can t you, Mr. Fitzpatrick? 24 A. There appears to be a difference, but the 25 photos are not -- if they were taken from the same 453

39 ~ estimony of John Fitzpatrick I Cross position, it would be much easier to make a 2 comparison. 3 Q. Mr. Fitzpatrick, based on what you can 4 determine by looking at this aerial photo, which is 5 August the 6th, 1996, and the one of September the 6 15th, 1996, doesn't it appear that these two piers 7 suffered storm damage of some kind between those two 8 dates? 9 A. Yes. 10 Q. And isn't it true, Mr. Fitzpatrick, that 11 what you see in these photographs, in the aerial 12 photograph of September the 15th, 1996, is like damage 13 you've seen in other marinas following storms, 14 correct? 15 A. Yes. 16 Q. All right, sir. Thank you, Mr. 17 Fitzpatrick, you may resume your seat. 18 Now, Mr. Fitzpatrick, turn with me, 19 please, to under Tab 4 to 034/ A. Picture 31? 21 Q. That's right. Picture 31 is at the top; 22 Picture 32 is at the bottom? 23 A. Correct. 24 Q. Now, Mr. Fitzpatrick, you've commented 25 about what's been referred to as the scab, which is t\5 \

40 Testimony of John Fitzpatrick I Cross the light colored piece of wood, and that's located 2 over a joint in the system~ isn't it? 3 A. Yes, it does appear like that's a joint 4 there. 5 Q. And that repair worked, didn't it, 6 Mr. Fitzpatrick? That joint did not separate during 7 the storm, did it? 8 A. No. 9 Q. So the damage to the right of that was 10 storm damage. The damage to the right of the repair 11 is storm damage, is it not, Mr. Fitzpatrick? 12 A. I'm not -- I don't understand what you're 13 referring to as storm damage. 14 Q. The damage to the right of the scabbed 15 over joint is storm damage, is it not? 16 A. I would not be able to make that 17 determination. 18 Q. And you didn't ask Mr. Ripley when you 19 were out there on the docks whether or not that was 20 storm damage, did you? 21 A. No, I did not. 22 Q. If you could turn with me back to under 23 tab Number 5, photographs Number 16 and 17 at the top. 24 MR. OWEN:. Which numbers? 25 MR. SMITH: Page Number

41 ... estimony of Jolm Fitzpatrick I Cross THE WITNESS: Page 16? 2 BY MR. SMITH: 3 Q. Yes. Am I correct, Mr. Fitzpatrick, that 4 that photograph shows, in effect, that this section of 5 Pier c is broken in two? 6 A. Are you referring to the lower picture on 7 Page 16? 8 Q. Yes. 9 A. And your definition is broken in two? 10 Q. Yes. The connections on both sides of 11 the dock are broken and it's displaced completely to 12 the left laterally? 13 A. Okay. 14 Q. Would you agree that that's broken in 15 two? 16 A. I was able to walk on that, and there 17 were scab boards on it. From the perspective of this 18 picture, it's I really can't see the continuance, 19 how you're -- I don't see that it's broken in two or I 20 can't observe of it being broken.in two from this 21 perspective of the photograph. 22 Q. I see, Mr. Fitzpatrick. By the way, you 23 did take photographs when you were out there, didn't 24 you? 25 A. Yes, I did. 456

42 Testimony of John Fitzpatrick I Cross Q. We don't have those, do we? 2 A. I don't know. 3 Q. And you didn't make any field notes, did 4 you? You didn't make any note of anything that you 5 observed out there, correct? 6 A. That's correct. 7 Q. So when you are commenting about your 8 recollection of specific stringers that might be here, 9 there, or anywhere, you are relying on your memory 10 from three years ago? 11 A. Yes. 12 Q. Now, Mr. Fitzpatrick, when you looked at 13 the aerial photograph of August the 6th, 1996 at the 14 dogleg of c, you certainly didn't see any displacement 15 like you see in this photograph on Page 16, did you? 16 A. The perspective of this photo, I'm not 17 sure that I am seeing the correct -- may I step down 18 and observe that again? 19 Q. You certainly may. 20 A. And you are referring to this area here? 21 Q. Yes. 22 A. The perspective of that photograph, from 23 the way it was taken and because this does take a, 24 what, a 45-degree turn, I'm -- I can't see the break 25 in that. I can see that there is a

43 ~ estimony of J olm Fitzpatrick I Cross Q. Dogleg? 2 A. -- dogleg, thank you. 3 Q. But in this photograph, Mr. Fitzpatrick, 4 you see no break or displacement at the dogleg of c, 5 do you? 6 A. No. 7 Q. All right. 8 A. Maybe some scabbing, but from that photo 9 I don t see a break. 10 Q. Mr. Fitzpatrick, thank you for coming 11 down. 12 Now, Mr. Fitzpatrick, scabbing is not 13 storm damage, is it? 14 A. No. rt s usually a temporary repair, can 15 be a permanent repair in some cases. 16 Q. You say it can be a permanent repair in 17 some cases? 18 A. If a rafter, as an example, has a lateral 19 split, it s lost some of its structural integrity, but 20 the integrity of the wood -- if there is no dry rot or 21 other -- insect deterioration, you can scab a board to 22 it through using some fasteners, and, actually, it 23 comes to be stronger than the initial construction 24 member. 25 Q. All right. 458

44 Testimony of John Fitzpatrick I Cross A. In this case where it's dry rotted so 2 extensively, a scab would be considered more of a 3 temporary basis to give -- the scab would be the 4 structural integrity. 5 The dry rotted, deteriorating material, 6 it would not -- would not have the structural strength 7 to hold a fastener for any extended period of time and 8 make that a permanent repair. 9 And that would be the difference between 10 scabbing when you could actually gain more strength 11 and scabbing to keep a structure together until 12 permanent repairs would be made. 13 Q. And in your experience, Mr. Fitzpatrick, 14 marinas you say fairly routinely will use a temporary 15 repair or a scab on a joint until permanent repairs 16 can be made? 17 A. It depends on the maintenance program of 18 the marina. Scabbing or temporary repai rs usually 19 or, excuse me, are, in my experience, more of an 20 emergency repair, not something that would allow it to 21 last for months and months before permanent repairs 22 are made. 23 Q. And, certainly, Mr. Fitzpatrick, you had 24 the opportunity to ask Mr. Ripley about that marina's 25 maintenance practices, didn't you? 459

45 Testimony of John Fitzpatrick I Cross A. I did have the opportunity. 2 Q. And you did not take that opportunity? 3 A. No, I did not. I knew that the loss 4 would be in excess of my authority, and I usually wait 5 until the adjuster that would be assigned as a senior 6 adjuster on it for him to gather that data. 7 Q. So you left it -- you left it to a senior 8 adjuster to make the inquiry of Mr. Ripley about what 9 the maintenance practices were and what the conditions 10 were before the storm and what actually happened 11 during the storm? 12 A. Yes. 13 Q. And you expected that the senior adjuster 14 would do that, correct? 15 A. I did not make it myself, but the senior 16 adjuster what the senior adjuster would do, I have 17 no idea. That's up to him. 18 Q. All right, sir. And with regard to your 19 comment about scabbing, would you look at C93, please. 20 A. C93? 21 Q. Yes. If you will go back to Number under 3 to 23 A. Okay. C93/94? 24 Q. Yes. C93, 3/5, 3/6. 25 A. Okay. I have those. 460

46 Testimony of John Fitzpatrick I Cross Q. And isn t this where a joint has been 2 replaced and a scab has been attached to the two good 3 portions of stringer, Mr. Fitzpatrick? 4 A. It appears that the stringers have been 5 scabbed, and then at the joint there's a scab on top 6 of the scabs. 7 Q. All right, sir. But in this case, isn't 8 it true that on the backside a problem joint has been 9 removed, whatever the problem might have been, and on 10 the backside another board has been scabbed in or 11 bolted in or secured to the backside of the stringer, 12 correct? Isn't that correct? 13 A. What do you mean by backside? 14 Q. Inside. 15 A. Oh, inside. I can't see the inside from 16 this photo. The exterior of the stringers have scabs 17 on them. 18 Q. In the bottom one, 3/6, Mr. Fitzpatrick, 19 do you see the metal joint to the right? 20 A. Yes, I do. 21 Q. And you see there is no comparable joint 22 to the left, correct? 23 A. I believe I see a joint on both sides. 24 Q. In any event, isn't it obvious to you, 25 Mr. Fitzpatrick, that there is a board connecting the \61,.

47 Testimony of Jolm Fitzpatrick I C:. ;, two ends of the stringer that's there? 2 A. Are you referring to the -- appears to be 3 a two-by-ten that's nailed into the stringers that is 4 at an angle, down about 15, 20 degrees? 5 MR. SMITH: May I approach the witness? 6 THE COURT: You may. 7 BY MR. SMITH: 8 Q. Mr. Fitzpatrick, does this right here 9 appear to be a board that's been inserted on the 10 backside of the stringers to attach this end and that 11 end of the stringer? 12 A. You referring to -- I'm pointing to Q. That board, yes. 14 A. That board appears to be the stringer. 15 Q. What is this? 16 A. That's a scab. 17 Q. This is a scab and this is a scab? 18 A. This appears to be nailed to the outside 19 of that board, and this board appears to be nailed to 20 those. This -- and this metal piece appears to be the 21 hinge; is that right? 22 Q. I think so, Mr. Fitzpatrick. 23 A. And hinges attach to the stringer, 24 correct? 25 Q. No. This hinge isn't attached, is it? t\6z

48 Testimony of John Fitzpatrick I Cross A. It appears like it's attached to -- this 2 metal hinge appears to be attached to that board, and 3 that board appears to be a stringer. 4 Q. All right, sir. My question is doesn't 5 it appear, when you compare the wood over here to the 6 wood over here, that that's the stringer board? 7 A. No, sir. Those would be scabs. 8 Q. Oh, so you are saying that these are the 9 scabs and not this right here, that that's the 10 stringer board? 11 A. Yes. See the hinge? 12 Q. I see the hinge. 13 A. Okay. Where does the hinge attach to 14 it? 15 Q. It doesn't attach to that board, in my 16 perspective, Mr. Fitzpatrick. 17 A. Okay. 18 Q. All right. 19 A. What is that metal piece attached to? 20 What's Q. It's not attached to anything. That's 22 where a joint was that's been repaired. 23 A. How is it maintaining its position? 24 Q. Because this board has been attached to 25 the back side of this end of the stringer and that end L\63

49 T~sti1nony of Jolm Fitzpatrick I Re-direct of the stringer, and isn't that the kind of repair 2 that you've just described to me is appropriate to do 3 if that's what happened here? 4 A. I didn't say appropriate. I said 5 emergency. It would be an emergency repair. 6 Q. Mr. Fitzpatrick, didn't you just describe 7 to me a situation where two-by-eights or two-by-sixes 8 deteriorated at some point and you put a scab on the 9 back of it and attached it over that deteriorated 10 area, and didn't you tell me that that makes that 11 member, in effect, stronger? 12 MR. OWEN: Judge, I am going to THE WITNESS: No, I did not. You 14 misunderstood my explanation or I did not explain it 15 to you correctly. That would definitely not be 16 correct. 17 MR. SMITH: Thank you, Mr. Fitzpatrick. 18 REDIRECT EXAMINATION 19 BY MR. OWEN: 20 Q. Mr. Fitzpatrick, Mr. Smith asked you 21 about storm damage. Would you tell us, please, how 22 you define storm ~image. 23 MR. SMITH: I object, Your Honor. 24 MR. OWEN: He has opened the door, 25 Judge. He asked him the question, and I have a right 464

50 Testimony of John Fitzpatrick I Re-direct to have this witness fully explain what he's talking 2 about by storm damage he saw on thi~ picture. 3 MR. SMITH: To the extent Mr. Owen is attempting to ask Mr. Fitzpatrick to define terms that are in the insurance contract, I object to that, and that's the basis of my objection. 7 THE COURT: But that's not his question. 8 MR. SMITH: All right, sir. 9 THE COURT: It's my understanding that his question is to ask this witness to define storm damage to the extent he saw it in the aerial photo that you presented to him earlier, the one of August the 6th, 1996 and September 15th, question? Is that your 15 MR. OWEN: Yes, sir. And how he was 16 using that term when he answered Mr. Smith's question. 17 THE COURT: Right. Mr. Fitzpatrick can 18 answer that. 19 THE WITNESS: Storm damage in this case 20 is from a hurricane. Hurricane develops a dome of 21 water. The dome comes in, quite often referred to as 22 a surge, and then, depending on the tides, a high tide 23 at the same time would increase the damage caused by 24 the surge and tides and wave wash, and the hurricane 25 also has high wind velocities, and damage -- so damage TAYLOE AS4~5ATES, INC.

51 Testimony of Jolm Fitzpatrick I Re-direc~ is caused by flood, surge, tide, and wind. 2 BY MR. OWEN: 3 Q. In looking at the storm damage you saw in 4 this picture, what of that damage did you relate to 5 the dome of water, surge, wave action? 6 A. The damage to the docks and the 7 breakwater appear to be 8 MR. SMITH: Excuse me, Mr. Fitzpatrick. 9 This witness, I did not examine him about whether or 10 not this damage was caused by wind, water, or what 11 kind of weather event caused it. 12 And to that extent I object to Mr. owen 13 now delving into that area of expertise with this 14 witness. 15 Furthermore, if -- even if he is going to 16 try to so qualify him and ask him that, he has not 17 laid the foundation to elicit testimony from 18 Mr. Fitzpatrick about waves, tides, tidal waves and 19 surge since -- unless and until, assuming he is 20 qualified to assess those facts, there is evidence in 21 the record about those circumstances in Hurricane Fran 22 on September the 6th, 1996, and there is no evidence 23 of that in the record at this point. 24 MR. OWEN: Your Honor, he asked this man 25 about the storm damage he saw. He opened the door and 466

52 Testimony of John Fitzpatrick I Re-direct asked him, and I have a right to have this gentleman 2 explain what he meant by the term storm damage and 3 what it came from. 4 Mr. Smith can't just ask that question, 5 leave it in a vacuum, and try to limit this witness 6 when he asked the witness that question. I think I 7 have a right for him to explain what he is talking 8 about. 9 THE COURT: Well, he can tell what he 10 saw, but for him -- unless he has some knowledge to 11 talk about the causes, I believe that goes beyond what 12 Mr. Smith asked him. 13 Mr. Smith just asked him to look at the 14 picture and do you see any storm damage in the photo 15 taken on September the 15th, 1996, vis-a-vis the photo 16 of the marina taken on August the 6th, Mr. Smith didn't go into the causes at all. 18 I don't know whether this witness is 19 competent to talk about those areas except in a 20 generic sense. He can tell us what he saw and why he 21 said that's storm damage, but when you start talking 22 in terms of flooding, surges, wind, and damage to the 23 breakwater, I believe that's too far. 24 BY MR. OWEN: 25 Q. Mr. Fitzpatrick, in your inspection of 467