Key Decisions

January 2013 – Toilet Overflow Is Excluded

(filed under: Key Decisions | January 16, 2013)

Toilet Overflow Is Excluded

Cardio Diagnostic Imaging, Inc. v. Farmers Insurance Exchange
(Cal. Ct. of App., 2d Dist.), filed December 18, 2012

KEY FACTS

Water overflowed from a toilet in a business suite on the third floor of the building in which Cardio Diagnostic Imaging rented a suite on the first floor. The water overflowed because of a combination of two factors. First, a defect in the toilet caused the water to run unchecked. Second, there was a blockage in the drainpipe that prevented the water from simply running down the drain. The water from the third floor suite flooded Cardio’s suite, causing extensive damage to the floors and equipment.

At the time, Cardio was insured under a Farmers Insurance Exchange property insurance policy. The policy covered accidental direct physical losses to Cardio’s property, except as excluded. Among other things, the policy excluded damages caused directly or indirectly by “Water that backs up or overflows from a sewer, drain or sump.”

Based on this exclusion, Farmers declined Cardio’s claim.

In the ensuing lawsuit, the trial court concluded that the loss was excluded and that Farmers had properly declined coverage. It granted Farmers’ motion for summary judgment.

HOLDING & REASONING

The Court of Appeal affirmed, finding the exclusion unambiguous.

The court rejected Cardio’s argument that the exclusion applied to large-scale disasters, not to situations nor blockages that prevent water from flowing down an inside drain. While that may have been the intention, it still applied to other overflows because there was nothing in the language of exclusion that restricts its application.

The court also rejected Cardio’s argument that the phrase “backs up or overflows from” means that water must come out of the sewer or drain, and does not include water unable to proceed down an interior drain.

Cardio also argued that the exclusion did not apply because the water overflowed from a toilet rather than a drain. But the court noted that “The toilet was attached to a drain.” If there “is a blockage in the pipes or sewer system, the pipes leading to the drain will be filled and any additional water will overflow into, and eventually out of, the toilet.”

ANALYSIS

For many years, most property insurance policies have excluded various types of water damage, such as floods, ground water, and water that backs up from sewers and drains. There have been inconsistent results in cases throughout the country as to whether the exclusion for “back ups” barred coverage when water could not enter the drain, as opposed to water coming back out of a drain. The language in the policy as quoted in this case is not identical to the language of other policy forms. The lesson of the case is not that overflowing plumbing appliances are always excluded, but rather that it is important to refer to the specific language in the context of the facts of the specific loss.