No coverage for basement water damage from cogged drain

No Coverage for Basement Water Damage from Clogged Drain

By Deborah Elkins
Published: June 21, 2011

Tags: Fairfax County Circuit Court, Insurance, Judge Randy I. Bellows, Virginia Circuit Courts
 
In light of plaintiff homeowners’ stipulation that surface water gathered in a well with a clogged drain but could not enter the drain and instead flowed into the homeowners’ basement, a Fairfax Circuit Court says damage to the home is not covered by the Water Damage Endorsement of plaintiffs’ homeowners policy, which does not cover the loss because the water did not enter the drain.

In June 2003, plaintiff homeowners purchased a Deluxe Plus Homeowner Policy from defendant Allstate to cover their home in McLean. They paid an additional premium to be covered by a Virginia Water Damage Endorsement.

Defendant insurance company denied the homeowners’ claim. The carrier maintained the loss to plaintiffs’ property was directly or indirectly caused by one or more of the sources described in Section I of the Homeowner Policy entitled “Losses We Do Not Cover Under Coverages A and B,” including loss caused directly or indirectly by flood, not limited to surface water; water that backs up through sewers or drains; water that overflows from a sump pump, pump well or other system designed for removal of subsurface water that is drained from a foundation area of a structure; and water below the surface of the ground, regardless of its source.

The Endorsement states that for an additional premium, the carrier would cover “direct physical loss to covered property… caused by water or any other substances which backs up through sewers or drains.”
Plaintiffs argue the Endorsement covers the loss incurred in this case because the damage to the basement was caused by a “backed up” drain.

Plaintiffs emphasize that the Endorsement modified the Homeowner Policy to provide coverage for water that “backs up through sewers or drains” which would otherwise be excluded under the Policy. In the alternative, plaintiffs argue the terms of their agreements with defendant are ambiguous at best and should be interpreted in their favor.

Defendant contends the Endorsement does not apply to these facts as the parties stipulated that no water ever entered the drain and therefore no water could have traveled “through” the drain. Defendant argues the water which caused the damage to plaintiff’s home was “surface water” or water “which is diffused over the surface of the ground, derived from falling rains and melting snow.”

The issue here is whether the source of the damage to plaintiffs’ property was caused by surface water, which is excluded from coverage, or by “water that backs up through sewers or drains” which is covered by virtue of the Endorsement. Resolution of this issue depends on the meaning of the phrase “back up through.” The court is not aware of any Virginia precedent that addresses this precise issue. However, other jurisdictions have interpreted similar insurance contracts and found that facts similar to the instant case fall under surface water exclusions rather than other provisions.

Virginia law clearly provides that courts must give words their “usual, ordinary and popular meaning” when interpreting insurance contracts. Under this principle, the court finds that the plain meaning of the Endorsement language requires that there must be some water in the pipe. The parties stipulated that water could not enter the drain, therefore, it is not possible that the water which damaged plaintiffs’ basement backed up through the drain or sewer. In this case, the heavy rainfall traveled as surface water across the completely clogged drain as if no drain existed. Moreover, if the surface water only partially contributed to the damage, the entire loss still would not be covered under the Homeowners Policy.

The court does not need to reach the issue of whether water must travel in the reverse direction of normal passage because the parties stipulated that no rain water entered the drain. However, the court notes that while the cases reviewed by the court reached different conclusions with regard to defendant’s argument that water must travel in the reverse direction in the pipe or drain, these cases were consistent in that the water occupied the pipe or drain before it caused the damage.

In sum, based on the cases reviewed by the court and the court’s own analysis of the plain meaning of water backing up through a sewer or drain, the court finds that at least some water must enter the drain or pipe for the Endorsement language to apply. Here, by stipulation of the parties, no water entered the drain. Therefore the damage to plaintiffs’ home falls under the surface water exclusion and defendant is not liable.

Summary judgment for defendant insurance carrier.

Dent v. Allstate Indemnity Co. (Bellows) No. CL 2010-3481, March 23, 2011; Fairfax Cir.Ct.; Kerrie C. Dent, pro se; Stephen A. Horvath for defendant. VLW 011-8-087, 7 pp.

Please contact us if you have questions or need legal assistance.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

Inquire@TGBlaw.com

http://www.tgblaw.com/

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