Water Damage Exclusion Held to Apply to In-Ground Swimming Pool Damage

HOMEOWNERS – PROPERTY – IN-GROUND SWIMMING POOL – WATER DAMAGE EXCLUSION
Jahier v. Liberty Mut. Group
(2nd Dept., decided 7/21/2009)

First Liberty Insurance Corporation insured the plaintiffs under a Deluxe Homeowners Insurance Policy.  In April 2007, the plaintiffs' in-ground swimming pool, the surrounding patio area, and the plumbing which serviced the pool sustained damage when the pool lifted up several inches out of the ground. At the time of the loss, the pool was not filled with water, as it had been drained by a contractor hired by the plaintiffs to perform maintenance work. During the time that the pool was empty, and shortly before the plaintiffs discovered the damage, heavy rains had fallen in the area. The plaintiffs made a claim under their policy, but Liberty disclaimed coverage based the policy's "Earth Movement" and "Water Damage"exclusions.

Then water damage exclusion negated coverage for loss caused "directly or indirectly" by "[w]ater damage, meaning . . . [w]ater below the surface of the ground, including water which exerts pressure on ... a building ... swimming pool or other structure ... regardless of any other cause or event contributing concurrently or in any sequence to the loss."

Plaintiffs sued Liberty for breach of contract and a declaration of coverage.  Suffolk County Supreme Court denied Liberty's motion and granted plaintiffs' cross motion for summary judgment, and Liberty appealed.  In REVERSING the motion court and granting summary judgment to Liberty, the Second Department held:

Liberty met its initial burden of establishing its entitlement to judgment as a matter of law by demonstrating that the "water damage" exclusion clearly and unambiguously applied to the plaintiffs' loss (see Reynolds v Standard Fire Ins. Co., 221 AD2d 616; Hipper v CNA Ins. Co., 2002 NY Slip Op 40109[U] [App Tm 9th & 10th Dists 2002]; see generally Cali v Merrimack Mut. Fire Ins. Co., 43 AD3d at 417; Sheehan v State Farm Fire & Cas. Co., 239 AD2d 486, 487; Kula v State Farm Fire & Cas. Co., 212 AD2d 16, 20). The plain language of the exclusion relieves Liberty from loss caused "directly or indirectly" by "[w]ater damage, meaning . . . [w]ater below the surface of the ground, including water which exerts pressure on . . . a building . . . swimming pool or other structure." Furthermore, losses due to "water damage" are excluded "regardless of any other cause or event contributing concurrently or in any sequence to the loss." Here, the evidence demonstrated that the plaintiffs' loss was attributable to the subsurface water pressure that was exerted upon the empty swimming pool, even though it was precipitated by the drainage of the pool and heavy rainfall (see Cali v Merrimack Mut. Fire Ins. Co., 43 AD3d at 417-418; Sheehan v State Farm Fire & Cas. Co., 239 AD2d at 487; Reynolds v Standard Fire Ins. Co., 221 AD2d 616, 616-617; Kula v State Farm Fire & Cas. Co., 212 AD2d at 20-21; Hipper v CNA Ins. Co., 2002 NY Slip Op 40109[U] [App Tm 9th & 10th Dists 2002]; South Carolina Farm Bureau Mut. Ins. Co. v Durham, 380 SC 506, 671 SE2d 610). In opposition to Liberty's motion and in support of its cross motion for summary judgment, the plaintiffs failed to raise a triable issue of fact or establish their prima facie entitlement to judgment as a matter of law, respectively, so as to preclude the award of summary judgment to Liberty (see Zuckerman v City of New York, 49 NY2d 557, 562).