dissenting.
I dissent.
I would find appellant’s insurance policy ambiguous. In Coverage B, it affords insurance against loss or damage caused by hail and rain that enter through an opening caused by the direct force of hail. Then § 1 of the policy voids that coverage completely by providing that a loss is not covered if caused partly by rain entering directly and partly by rain which has become surface water. It would be a rare occurrence in which some rain did not, as appellant claims, become surface water and enter the opening. It would seem that the parties must have intended to provide insurance coverage for something, otherwise why write into the policy all of the provisions concerning loss from windstorm, hail, rain, snow, sleet, sand or dust.
Coverage B provides as follows:
“We insure for accidental direct physical loss * * *.
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“2. * * * when the direct force of wind or hail damages the building causing an opening in a roof or wall and the rain, snow, sleet, sand or dust enters through this opening.”
The policy then provides, under SECTION 1 — LOSSES NOT INSURED:
“We do not insure under any coverage for loss * * * which would not have occurred in the absence of one or more of the following excluded events. * * * (1) flood, surface water * *
“We do not insure for such loss regardless of: * * * (c) whether other causes acted concurrently or in any sequence with the excluded * * * loss.”
The undisputed evidence in this case was that hail broke out basement windows and that hail and rain entered directly through the window opening causing some damage to the property. At this point in the occurrence, the damage was clearly covered by the policy, for it was hail damage that caused “an opening in a * * * wall” of the building and the rain and hail entered through the opening. Appellant even concedes that the broken windows are covered damage under the insurance policy, although at the time of argument such damage was unpaid.
The insurance coverage seemingly provided by Coverage B of the insurance policy then is claimed excluded by SECTION 1 — LOSSES NOT INSURED. The effect of a literal interpretation of the exclusionary clause in § 1 is that the policy provides no coverage at all for damage caused by rain, for appellant contends that as soon as the rain settles upon some surface, it be*773comes surface water. And if any of that surface water enters through an opening caused by hail or wind and it, in combination with rain or hail entering directly, causes damage, it is not covered. For example, assume that hail damage caused an opening in a roof, rain entered directly through the opening causing damage, but some of the rain which fell on the roof collected, ran down the roof and into the opening causing additional damage. Under the literal language of the policy, there would be no coverage for the loss and damage that occurred, for the rain that had collected on the roof would be surface water, and it, in combination with rain entering directly and causing the total damage, is excluded under § 1. I cannot accept that as the intent of the parties in writing this policy.
Appellant argued that rain did not become surface water until it fell to the ground. I do not find that interpretation in the policy. At least we must agree that what is surface water and when it becomes surface water was ambiguous insofar as such term was used in this insurance policy. I would hold it was the intent of the parties to provide some kind of coverage for damage caused by hail and rain. An ambiguous contract must be most strongly construed against the drafter of the instrument, in this case appellant. For this reason I would affirm the decision of the district judge. And, in any event, I would hold that the insurance policy at least covered the damage caused by the hail and by the rain that entered, not as surface water, but directly through the opening itself. Appellant contends that the major damage was caused by surface water. That at least is a concession that lesser damage was caused by rain and by hail entering directly. Without doubt, this damage was covered under the policy.