What the Archimedes' Principle and Empty In-Ground Swimming Pools Have to Do With Insurance Coverage

HOMEOWNERS – PROPERTY – IN-GROUND SWIMMING POOL – PRESSURE OR WEIGHT OF WATER EXCLUSION – EFFICIENT CAUSE OF LOSS
Gravino v. Allstate Ins. Co.
(4th Dept., decided 5/7/2010)

The street streaking, "Eureka!" shrieking Archimedes of Syracuse (Greece, not New York) reportedly discovered the principle of bouyancy while taking a bath and trying to figure out a way to determine whether King Hiero II's goldsmith had made the king's new laurel wreath crown from solid gold or had dishonestly added silver to it:

Any object, wholly or partially immersed in a fluid, is buoyed up by a force equal to the weight of the fluid displaced by the object.

Hydrostatic pressure is the pressure exerted by a fluid at equilibrium due to the force of gravity.

When an in-ground swimming pool is full of water, it exerts a force downwards due to gravity (weight) that is greater than that of the hydrostatic pressure, if there is any, that is exerted upwards on it by the water table.  When that pool is emptied, however, the force exerted downwards by the pool is less.  If the water table is lower than the bottom of the pool, no hydrostatic pressure exists and the pool does not move.  If the water table is higher than the bottom of the pool and the point at which the empty pool's weight equals the water table's hydrostatic pressure, however, the empty pool becomes buoyant and the pool "pops". 

That's what must have happened to the Gravinos' in-ground swimming pool, and they made a claim to their homeowners insurer, Allstate, for the damage to the pool's concrete that occurred when one end of the pool lifted out of the ground.  Plaintiff had drained his pool in June to paint it, but the painting was delayed due to rain.  Five days later, the Gravinos witnessed Archimedes' principle in action.  Allstate denied coverage for the damage based on, among other things, a policy provision in the policy excluding damage to a swimming pool caused by "pressure or weight of water."

Plaintiffs sued and the parties moved and cross-moved for summary judgment.  Erie County Supreme Court (Donna M. Siwek, J.) denied Allstate's motion and granted plaintiffs' cross motion.  On Allstate's appeal, the Appellate Division, Fourth Department unanimously REVERSED the order/judgment and vacated Supreme Court's declaration in favor of the plaintiffs, noting that since this was a breach of contract and not a declaratory judgment action, the court should have dismissed plaintiffs' complaint.

Finding that the efficient or dominant cause of the loss of the pool damage was excluded hydrostatic pressure, the Fourth Department held:

Defendant met its initial burden on its motion by establishing as a matter of law that the exclusion for damages caused by "pressure or weight of water" upon which defendant relied unambiguously applied to plaintiff's loss, and plaintiff failed to raise a triable issue of fact in opposition (see generally Zuckerman v City of New York, 49 NY2d 557, 562). The experts for each party agreed that the pool had lifted from the ground because of the hydrostatic pressure in the soil surrounding the pool. The fact that plaintiff's expert stated in his affidavit that the damage would not have occurred if plaintiff had not emptied the pool does not remove the loss from the policy exclusion. The policy expressly provides that, where the damage has two or more causes, the loss is not covered if the "predominant cause(s) of loss is (are) excluded" under the policy. Here, "[t]o determine causation, [we must] look[] to the efficient or dominant cause of the loss', not the event that merely set the stage for that later event' " (Kosich v Metropolitan Prop. & Cas. Ins. Co., 214 AD2d 992, lv denied 86 NY2d 707). Here, although the drainage of the pool may have been a precondition to the lifting of the pool from the ground, we conclude that defendant established as a matter of law that the groundwater pressure was the "predominant cause" of the loss, thus rendering applicable the policy exclusion for damages caused by "pressure or weight of water" (see Jahier v Liberty Mut. Group, 64 AD3d 683, 685).  

This blawg's discussion of the Javier v. Liberty Mut. Group case is here.

Water weighs 8.35 pounds per gallon, so the water in a 20,000-gallon swimming pool would weigh 167,000 pounds or 83.5 tons.  Remove that weight, add five days of rain to the water table beneath a pool, and cry "Eureka!" if it pops.  Just don't expect your homeowners insurer to cover any resulting damage if your policy contains an exclusion identical or similar to the ones in this or the Javier case.

First Department Affirms Coverage for Damage from Overflow of Clogged Roof Drain

COMMERCIAL PROPERTY – EFFICIENT PROXIMATE CAUSE OF LOSS – ACCIDENTAL DISCHARGE OR OVERFLOW FROM WITHIN A PLUMBING SYSTEM – BACKUP FROM CLOGGED ROOF DRAIN
Potoff v. Chubb Indem. Ins. Co.
(1st Dept., decided 3/12/2009)

Since I spent the day in Manhattan today, thought I would post this case.

You know you've been blogging for close to a year when you begin seeing cases decided on appeal that you blogged about at the motion court level.  Such was my realization when I saw this case issued by the First Department yesterday.

I posted the New York County Supreme Court's decision in favor of the insured back in early June of last year.  The First Department has now AFFIRMED that decision and order, holding:

Here, the policy covered "accidental discharge or overflow from within a plumbing . . . system" and "damage caused by water . . . which backs up from within . . . drains." Plaintiff established that "the proximate, efficient and dominant cause" (Album Realty Corp. v American Home Assur. Co., 80 NY2d 1008, 1010 [1992]) of the damage to her property was the clogged roof drain, which overflowed and sent water leaking into her apartment. The reasonable person would attribute this backup to a plastic bag that clogged the drain, as evidenced by the fact that the water began to clear from the roof almost immediately after the fire department removed the obstruction. 

Defendant argues that plaintiff's apartment was damaged not by water emanating "from within" the drain, but rather from rainwater on the roof that seeped or leaked into the building. We reject that view of the evidence.

Did the First Department just summarily equate an overflow with a backup in this case? I understand the court's overflow finding, but what backup was there?  Did water actually reverse direction or simply fill the clogged drain pipe and then overflow its top?   I'm troubled by what to me would seem to be an unnecessary and imprecise reference to "this backup".  An overflow of a plumbing system may or may not occur along with the backup of a drain.  Right?

Court Finds Question of Fact on Coverage for Sinkhole Collapse

SPECIAL MULTI-PERIL POLICY – WATER DAMAGE EXCLUSION – SINKHOLE COLLAPSE – EFFICIENT PROXIMATE CAUSE
Simmons v. Dryden Mut. Ins. Co.
(Sup. Ct., Rensselaer Co., decided 1/21/2009)

Would you know a sinkhole if your house fell into one? 

Plaintiffs owned a rental property in Rensselaer, New York.  A nearby city water main ruptured, leaking very large quantities of water into the subsurface soils around plaintiffs' property. The massive amount of water caused a large area of ground to collapse into what the court thought "would likely be considered by most people to constitute a sinkhole."  The erosion and "sinkhole" undermined the foundation of the house causing a portion of the foundation to collapse. The water also infiltrated plaintiffs' basement causing significant water damage.

Plaintiffs had a special multi-peril policy with Dryden Mutual which afforded named or enumerated perils property coverage, not all-risk coverage.  The subject policy provided insurance coverage only for losses caused by fire or lightning, removal, explosion, windstorm or hail, riot or civil commotion, aircraft, vehicles, smoke, vandalism, sinkhole collapse and volcanic action. The relevant policy form also contained an exclusion for water damage caused by flood, surface water, waves, tides, tidal water or overflow of a body of water, water which backs up through sewers or drains, and water below the surface of the ground pressing on or flowing or seeping through foundations or basements. Shortly after plaintiffs notified Dryden Mutual of their loss, it disclaimed coverage on the ground that water damage was excluded by the policy.

Plaintiffs commenced this breach of contract action, and both parties moved for summary judgment.  In DENYING both motions, Rensselaer County Supreme Court Justice Michael Lynch held:

(1)  the water damage exclusion did not apply because that exclusion has been held to exclude only damage from natural causes or phenomenon, and not damage caused by defective municipal water supply systems; 

(2)  the policy was ambiguous as to coverage for "sinkhole collapse"; the policy definition required a subterranean void caused by the action of water on a limestone or similar rock formation; it did not limit covered sinkholes to natural phenomena or the action of water to chemical dissolution; Dryden's geologist did not offer any opinion as to where the earth that washed away went, did not state how deep the bedrock or other rock formations that were beneath the subject property, and did not exclude the possibility that the water released from the city water system was sufficient to physically create a subterranean void within or upon a rock formation allowing the supporting earth to collapse into such void;

(3)  partial summary judgment was granted to Dryden Mutual, dismissing plaintiffs' claims for damages to the property's driveway, trees, shrubs, plants and lawn, which were not not covered; and 

(4)  the affidavit of plaintiffs' construction engineering expert failed to set forth all of the facts upon which the expert's opinions were  based and, therefore, was without probative value; moreover, it failed to address or exclude a likely cause of the collapse and was "excessively conclusory". 

Rain, Rain, Go Away -- Damages from Overflow of Clogged Roof Drain Found to be Covered

PROPERTY – EFFICIENT PROXIMATE CAUSE OF LOSS – ACCIDENTAL DISCHARGE OR OVERFLOW FROM WITHIN A PLUMBING SYSTEM
Potoff v. Chubb Indem. Ins. Co.
(Sup. Ct., New York Co., decided 5/23/2008)

Chubb insured Potoff's 4th floor co-oped apartment and studio under a named perils policy that covered damages resulting from, among other things, the "accidental discharge or overflow from within a plumbing ... system..." including "from water and water borne material which backs up from within sewers or drains."

After a heavy overnight rainstorm, rainwater collected on the roof and leaked into the apartments below through "various fissures in the roof". Firemen who had been dispatched to the building found and removed a plastic bag that had been clogging the roof drain, allowing 18 inches of standing water on the roof to drain.

Although Chubb did not dispute that the roof drain was a "plumbing sytem", it denied coverage based on its position that that the blockage of water in the roof drain did not cause an accidental discharge or overflow from within the drain and that, in any event, the proximate cause of Potoff's was the passage of water through the roof.

In denying Chubb's motion and granting the insured's cross motion for summary judgment, Justice Martin Shulman rejected Chubb's arument on causation, finding:

If the accumulation of water on the roof resulted from an accidental overflow from within the roof drain, then the fact that the water had to pass through the surface of the roof in order to damage plaintiffs property does not alter the fact that such damage was directly caused by the overflow. The roof, whether portions of it were weakened by the water or not, was merely the setting through which the water passed.

Noting that "[t]he issue here... is not what the efficient cause of Potoff's damages was, but whether the water that caused those damages was an accidental overflow from the subject drain", the court held:

The tests to be applied in construing an insurance policy are common speech and the reasonable expectation and purpose of the ordinary businessman." Ace Wire & Cable Co., Inc. v Aetna Cas. & Sur. Co., 60 NY2d 390, 398 (1983) (citations omitted). Under those tests, where water that normally would go down a drain is stopped from doing so by an obstruction in the drain, the resulting overflow is an overflow from within the plumbing system. It is undisputed that the plastic bag clogged the drain. Accordingly, some water entered the drain, then continuously overflowed once the drain's capacity was exceeded.

Partial summary judgment on liability granted to Pottoff, with the amount of damages to be determined at trial, if not resolved first in court-ordered mediation.

Post Script (March 13, 2009) ~~ The First Department AFFIRMED this decision here.