Summary Judgment to Homeowners Insurer on Insured's Failure to Reasonable Care to Maintain Heat Affirmed By Third Department

HOMEOWNERS  – FREEZING EXCLUSION – REASONABLE CARE TO MAINTAIN HEAT 

Stephenson v. Allstate Indem. Co.
(3rd Dept., 4/19/2018)

The insured single-family residence was unoccupied from December 2013 through March 24, 2014, when damages were discovered from  water that had discharged from the plumbing system after a pipe broke when it froze as a result of inadequate heat in the premises.  The home's water supply had not been shut off and the plumbing system had not been drained.  The insured had left her property unoccupied during the winter months without making any arrangements to have it inspected during her absence to ascertain whether the heating system was functioning.

Allstate disclaimed coverage based on several policy exclusions, including one for damage caused by "[f]reezing of plumbing, fire protective sprinkler systems, heating or air conditioning systems or household appliances, or discharge, leakage or overflow from within the systems or appliances caused by freezing, while the building structure is vacant, unoccupied or being constructed unless you have used reasonable care to: (a) maintain heat in the building structure; or (b) shut off the water supply and drain the system and appliances."

The insured sued Allstate for coverage and, after discovery was complete, Allstate moved for summary judgment.  Supreme Court granted Allstate's motion and plaintiff appealed.  Noting that the determinative issue in a freezing exclusion case is whether the insured used reasonable care to maintain heat in the premises, the Third Department AFFIRMED the grant of summary judgment to Allstate:

In support of its motion, defendant submitted plaintiff's deposition testimony and a statement that decedent made to defendant's claims investigator showing that decedent left the property unoccupied during the winter months without making any arrangements to have it inspected during her absence to ascertain whether the heating system was functioning. Defendant also submitted the affidavit of an expert witness showing that consumption of natural gas — the fuel used to heat the premises — from December 7, 2013 through February 6, 2014 was insufficient to maintain a level of heat adequate to prevent freezing of the plumbing system. As defendant met its burden of establishing that the exclusion applied here, the burden shifted to plaintiff to raise a triable issue of fact in this regard.

Plaintiff's proof regarding decedent's arrangements regarding maintenance of the property in her absence was limited to the affidavit of Gerald Whitmarsh, who was responsible for lawn mowing and snow removal. Whitmarsh does not aver that decedent asked him to inspect the interior of the premises to confirm whether it was adequately heated, or that he actually entered the premises during the relevant time. His conclusory allegations that the premises were always heated and that he never noticed that the heat was off — which do not specify when those observations may have been made — are insufficient to rebut defendant's showing that decedent made no arrangements to ensure that the heat continued to work during her absence. Plaintiff's argument that defendant was required to prove the cause of the heating system's failure is misplaced because it fails to address the determinative issue of whether decedent used reasonable care to ensure continued operation of the heating system during her absence. We conclude that decedent failed to use reasonable care, as a matter of law, to maintain heat in the premises while it was unoccupied for three months during the winter heating season, because it is undisputed that she did not arrange for inspection of the premises or take any other action to ensure that adequate levels of heat were actually maintained during that time period (see e.g. Amery Realty Co., Inc. v Finger Lakes Fire & Cas. Co., 96 AD3d 1214, 1216 [2012], lv denied 19 NY3d 812 [2012]; Pazianas v Allstate Ins. Co., 2016 WL 3878185, *5, 2016 US Dist LEXIS 92796, *13-15 [ED Pa 2016]; Jugan v Economy Premier Assur. Co., 2018 WL 1432973, *3-4, 2018 US App LEXIS 7218, *8-14 [3d Cir 2018]). Thus, Supreme Court properly granted defendant's motion. Plaintiff's remaining arguments have been considered and found to lack merit.

Facts supporting summary judgment:

• home was unoccupied for three months during the wintertime
• the home's water supply had not been shut off 
• the plumbing system had not been drained
• the insured had made no arrangements to have the home inspected while she was gone
• an expert opined that the home's natural gas consumption was insufficient to maintain a level of heat adequate to prevent freezing of the plumbing system