Full Service Law Firm in Mt. Laurel Township, NJ | Capehart Scatchard

Property damage

Many homeowners’ insurance policies contain an exclusion for “continuous or repeated leakage or seepage of water.”  Some policies specify that “continuous or repeated leakage” is excluded where it occurs over a certain period of time (14 or more days, for example).  Other policies make no reference to a required timeframe or simply state that the leakage must occur “over a period of time.” The question is, when can this policy exclusion be utilized successfully to defend against a water damage claim? 

Unfortunately, there are no cases in New Jersey or Pennsylvania discussing this type of policy exclusion in any detail.  A look to other jurisdictions (here, Florida and California) is thus instructive.

In Hoey v. State Farm Fla. Ins. Co., 988 So. 2d 99 (Fla. 4th DCA 2008), the insureds’ home was damaged by water leakage from a toilet supply line.  The leak was discovered after the property had been vacant for several months, when a neighbor observed water flowing below a sliding glass door.

The policy at issue excluded losses “caused by or resulting from continuous or repeated  seepage or leakage of water or steam which occurs over a period of time and results in deterioration, corrosion, rust, mold, or wet or dry rot.”  The policy also provided that it did not insure for loss consisting of or caused by “continuous or repeated seepage or leakage of water from a…plumbing system.”

A review of water bills for the property revealed that in the absence of a leak, the water usage for the unoccupied property was 20 gallons per month.  Two months before the loss was discovered, the water usage increased to 760 gallons.  One month before the loss was discovered, the water usage increased to 7,280 gallons.  Finally, in the 18 days before the loss was discovered, the water usage was 8,600 gallons.

At trial, an expert testified on behalf of the insurer that the leakage resulted from the failure of a nylon fitting in a toilet supply line, and that the water bills demonstrated that water usage had increased gradually over three months from zero to 420 gallons a day. This was an ongoing increase from a drip to a major failure of the fitting.  The expert also noted rot in the wood near the fitting and mold in the nearby drywall, which he opined were consistent with leakage over a period longer than a few weeks.

The trial court found that the leak went undiscovered for a period of about three months and thus fell within the policy exclusion for “continuous or repeated  seepage or leakage of water…which occurs over a period of time.”  The appellate court affirmed, finding that the trial court’s decision was supported by the above-referenced evidence.  The appellate court also rejected, without discussion, the insured’s contention that the exclusion at issue was ambiguous.

In Brown v. Mid-Century Ins. Co., 215 Cal. App. 4th 841 (2013), the insureds began observing condensation and mildew on their windows and walls on February 18, 2009.  A week later, they noticed mold forming on all of their windows and some of the walls, which they described as “developing everywhere simultaneously.”  A month after the condensation was initially noticed, the insureds entered the crawlspace and observed moisture and damp soil.  They were unable to observe the source of the water, but shut off the water to the house anyway.  A plumber subsequently determined the leak was coming from a hole in a hot water pipe below the insureds’ laundry room.

The policy at issue explicitly stated that it did not cover “any water, or the presence of water, over a period of time from any constant or repeating gradual, intermittent or slow discharge, seepage, leakage, trickle, collecting infiltration, or overflow of water from any source…whether known or unknown to any insured.”

Following the reporting of the loss, the insurer’s claim representative inspected the property and observed (1) pervasive mold and moisture on the interior walls of the home; and (2) heavy corrosion on the leaking pipe.  In a recorded statement, the insureds indicated they began noticing evidence of a water leak approximately one month earlier.  They indicated the condensation stopped forming on the windows when they turned off the hot water approximately one month later.

The insurer retained a plumbing expert who inspected the relevant section of pipe and reviewed photographs previously taken by the insurer.  The plumbing expert opined that corrosive elements caused a “slow, gradual and incremental deterioration of the pipe’s outer wall,” resulting in a pinhole-sized opening through which hot water slowly leaked out.  Thereafter, the deterioration process accelerated, resulting in a larger opening and more significant leak.  The expert opined the leak lasted at least 5 months before it was discovered and the water shut off.  The expert also reviewed water bills for the home, which revealed increased water consumption during the period water was escaping from the pipe, which then decreased to normal levels after the repair.  The insureds’ retained their own expert, who opined that the pipe “failed suddenly.”

On appeal from the trial court’s grant of summary judgment in favor of the insurer, the insureds did not dispute the existence of the effects of the water for at least a month or two.  They argued, however, that their expert’s opinion that the breaching of the pipe occurred “suddenly” created a triable issue of fact.  The appellate court rejected this argument, noting that even if the breaching of the pipe occurred suddenly, the subsequent leakage of water continued for a month or two (according to the insureds) or 5 months (according to the insurer).  This water discharge over a period of months, which was the cause of the damage to the insureds’ home, did not qualify as “sudden” under the plain terms of the policy. 

The appellate court also rejected the insured’s argument that the policy’s reference to leakage which occurs “over a period of time” was ambiguous.  “The fact that the policy does not define ‘a period of time’ does not necessarily create ambiguity…[A]lthough there may be, at the quantum level, some ambiguity in the concept of ‘a period of time,’ an average layperson understands generally what ‘a period of time’ is, and understands that for water escaping from a pipe, ‘one to two months’ qualifies.”  The appellate court thus affirmed the grant of summary judgment in favor of the insurer.

The above-referenced cases demonstrate that “continuous or repeated leakage” exclusions can be utilized successfully where properly supported by competent evidence establishing the duration of the leak.  This may include evidence of rot, mold, increased water usage and admissions or expert testimony regarding the duration of the leak.  An insurer seeking to rely on this type of exclusion should thus be on the lookout for, and otherwise develop, as many of these types of evidence as possible.

Plaintiff Zulfigar Ahmed suffered a property damage loss at his owner-occupied two-story residential apartment house in Paterson due to a high wind rainstorm.  At that time, a tree limb and branches fell onto plaintiff’s home, damaging its roof, vinyl siding, concrete masonry wall, a window and other property.  The issue in Ahmed v. American Security Insurance Co., 2024 N.J. Super. Unpub. LEXIS 852 (App. Div. May 13, 2024) was whether the plaintiff had submitted sufficient proofs of his property damage from this rainstorm to survive a motion for a summary judgment dismissal.

Plaintiff’s home was insured with American Security Insurance Company under a hazard insurance policy.  The policy provided liability coverage for the dwelling.

After the rainstorm, plaintiff submitted an insurance claim, specifically claiming that rainwater leaked from the damaged roof and window to lower levels of the house causing water damage to the basement.  Defendant’s adjuster inspected the exterior of the property, taking limited pictures.  Plaintiff submitted damages in the form of an itemized invoice from Ortiz Construction in the amount of $34,246.00 for the repairs performed.  The defendant insurance company advised plaintiff it was preserving a full reservation of rights pending full access to the property for a complete inspection.  Subsequently, plaintiff submitted a request for payment for an exterior gutter, house trimming, a door, a step railing, the roof, and vinyl siding.  Plaintiff resubmitted the paid Ortiz Construction invoice and requested a payment of same.

A dispute arose as to the extent of the damage caused by this storm.  The defendant insurance company disputed causation for some of the plaintiff’s alleged property damage, attributing necessary repairs to prior insurance claims.  In the prior year, plaintiff had settled five property damage claims with defendant.

In December 2020, defendant notified plaintiff’s counsel that the claim adjustment was completed and sent a check in the amount of $8,703.00 to cover the damage it claims was caused by the rainstorm.  While the plaintiff’s counsel received the check, allegedly, it was returned as inadequate.  The plaintiff maintained that the total tree damage loss to his house and car was approximately $440,000.00. 

This dispute ended up in a lawsuit in which plaintiff sued the insurance company for breach of contract, negligent misrepresentation, declaratory judgment, specific performance, unjust enrichment, and bad faith.  Then it produced an expert report by a forensic engineer who opined that most of the interior damage was unrelated to the tree impact and was related to prior claims. While the report acknowledged the exterior damage, the expert opined that there was “historical and overlapping damage.”  Plaintiff, in rebuttal, produced multiple receipts, including additional paid invoices from Ortiz Construction and MK Construction. 

At the conclusion of discovery, the defendant moved for a summary judgment dismissal.  The trial court judge granted the motion, finding that all of the damage was not causally related to the tree damage.  Plaintiff appealed this ruling.

The Appellate Division reversed.  It found that summary judgment should not have been granted because there were issues of fact which precluded a dismissal though a summary judgment proceeding.  The Court found that the trial court judge failed to address plaintiff’s Ortiz Construction invoices which showed payment for the repair work.

The Appellate Division found that “the construction company invoices sufficiently demonstrated a prima facie showing of disputed facts regarding property damage causally related to the fallen tree limb precluding summary judgment.”  The Court expressed no opinion as to whether plaintiff’s proffered contractors should be qualified as experts, but it concluded that plaintiff made a sufficient prima facie showing as to at least some of the damages alleged.  Thus, the Appellate Division reversed and remanded back to the trial court for further proceedings.

Client: Safeco Insurance Company of America

Court: Superior Court of New Jersey, Burlington County

Brief Attorney: Voris M. Tejada, Jr.  

**Results may vary depending on your particular facts and legal circumstances**

The plaintiffs sued Safeco, their homeowners’ insurance carrier, for breach of contract after Safeco partially denied plaintiffs’ claim for roof damage allegedly resulting from a hailstorm.

Safeco filed a Motion for Summary Judgment seeking to dismiss the suit based on plaintiffs’ failure to comply with the limitations provision contained in their insurance policy. While the statute of limitations for breach of contract claims is 6 years, insurance policies commonly contain provisions which require the insured to bring suit within one year of the date of loss. Under related case law, this 1-year period is “tolled,” or paused, between the time the insured reports the claim and the time the insurer issues its coverage or denial decision.

Here, the plaintiffs did not report the loss to Safeco until 306 days later. Thereafter, Safeco spent 40 days investigating the claim before issuing its partial denial letter. Critically, the plaintiffs did not file suit until 432 days after the loss. As such, even after accounting for the 40 days Safeco spent investigating the claim, plaintiffs still waited 392 days to file suit, exceeding the 1-year limitations period set forth in the policy. For these reasons, the Court granted Safeco’s Motion for Summary Judgment and denied plaintiffs’ subsequent Motion for Reconsideration.

Capehart Blogs

Subscribe to Blog Updates

Categories