Concurrent Clause Exclusion Bars Sewer Backup Claim

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FRANKFORT, July 26 — A Kentucky appeals court ruled that a concurrent cause exclusion barred coverage provided under a Sewer and Drain Back-Up endorsement  in a policy issued by Maryland Casualty Co.  to a building owner and eye car practice.   The court affirmed summary judgment for the insurer in the case.

Eye Doctor Caroline L. Hendy, Insight Properties LLC and Eye Deal Eye Care II PLLC were insured by Maryland Casualty.  On Nov. 30, 2010 extensive damage was done to the insureds’ office building following heavy rains.  The doctor discontinued her practice for nearly 5 full days, and furnished an engineers’ report which attributed the damage to a collapsed drainage tile on a neighboring property which was under construction.

On March 7, 2011, the insureds sued Maryland Casualty in state court for negligence and bad faith  after the insurer declined coverage on grounds of the concurrent clause exclusion.  While the policy provided coverage for sewer backup, the policy also contained flood and surface water exclusions, and a concurrent cause exclusion which, Maryland Casutalty asserted, made the sewer backup coverage inapplicable to the loss.

Maryland Casualty was granted  summary judgment by the trial court, which found that the concurrent causes of heavy rain and surface water from overflow of a nearby creek likely contributed to the loss and the insureds’ damages.  The court held that the surface and flood water exclusions applied, regardless of any other contributory or concurrent event.

The Kentucky appeals court affirmed summary judgment for Marlyand Casualty, holding that the sewer backup coverage provision was essentially irrelevant  when the trial court determined that flood or surface water contributed to the loss:

“When viewing the record in a light most favorable to Appellants and resolving all doubts in their favor, we cannot conclude that the trial court erred in finding that there were no genuine issues of material fact and that [Maryland Casualty] was entitled to a Judgment as a matter of law. The policy language is not ambiguous and expressly provides an exclusion from covered loss for damages resulting from ‘flood, surface water . . . [or] overflow of any body of water.”

Dr. Caroline I. Hendy, et al. v. Maryland Casualty Co., No. 2015-CA-001030, Ky. App.; 2016 Ky. App. Unpub. LEXIS 502

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Author: CJ Haddick

C.J. Haddick is a Director with the law firm of Dickie, McCamey, & Chilcote, PC, based in Pittsburgh, Pa. He has advised and represented insurers in insurance coverage and bad faith litigation for more than a quarter of a century, and written and spoken throughout the United States on insurance coverage and bad faith prevention and litigation. He is Managing Director of the firm's Harrisburg, Pa. office. Reach him at chaddick@dmclaw.com or 717-731-4800.

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