The recent opinion of Whitley v. American Integrity Ins. Co. of Florida, 43 Fla.L.Weekly D1503a (Fla. 5^th DCA 2018), as a follow-up to this article on the property insurance exclusion regarding the “constant or repeated seepage or leakage of water…over a period of 14 or more days,” is a beneficial opinion to insureds. 

 

In this case, the insured had a vacation home.  A plumbing leak occurred that caused water damage to the home.  The plumbing leak occurred during a period of time that lasted approximately 30 days.  For this reason, the property insurer denied the claim per the exclusion that the policy does not cover loss caused by repeated leakage of water over a period of 14 or more days from a plumbing system.  Summary judgment was granted by the trial court in favor of the insurer based on this exclusion. 

 

The insured countered that the policy did not address whether it covered a loss occurring within the first 14 days.  The insured argued, and the appellate court agreed, that the insurer therefore failed to establish that the water loss did not occur within the first 14 days.  “The undisputed fact that the property was exposed to water for more than fourteen days did not establish that the loss occurred on the fourteenth or later day of exposure pursuant to the exclusionary provision.”   Whitley, supra.

 

This is a beneficial case to an insured because if loss occurred due to the continued seepage or leakage of water over a period of 14 days or more (e.g., continuous plumbing leak), the insured can establish it is still entitled to coverage for loss that occurs during the first 14 days.  This puts the onus on the insurer to argue the loss occurred after the 14th day.  However, the insured will counter that the loss occurred during the first 14 days.  In other words, the insured can make this a question of fact for the jury.  

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.