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Sunday, March 3, 2024

Can a Flood Occur on the High of a 10-Story Roof? What Is Floor Water?

Think about this hypothetical dialog:

Consumer: “Mr. Merlin, it was like Noah’s Ark in our lounge! We have been flooded out. Our home equipment, garments, beds, sofas – all the pieces become a soggy mess. And guess what? The insurance coverage firm is taking part in disguise and search with our cash.”

Chip: “That appears like a modern-day aquatic journey! However inform me, did you might have flood insurance coverage?”

Consumer: “Flood insurance coverage? We reside within the penthouse, 23 flooring up. The one waves we see are those on TV! Why would we purchase flood insurance coverage?”

Folks usually name varied types of water harm a “flood” when most insurance coverage professionals coping with insurance coverage consider a flood as rising waters on floor degree brought on by varied components. Water at floor degree then brings to thoughts the time period “floor water.” “Floor water” might not rise to the extent of a “flood,” however is commonly of concern as a result of harm from floor water is commonly excluded in property insurance coverage insurance policies.

Understanding the excellence between these two phrases is important within the context of property insurance coverage. It helps in precisely assessing applicable protection for water-related damages. So, what’s “floor water,” and the way is it completely different than a “flood?”

These points and phrases are at problem in a case that’s being despatched to the Massachusetts Supreme Judicial Courtroom with the next query posed by the federal appellate court docket:1

Whether or not rainwater that lands and accumulates on both (i) a constructing’s second-floor out of doors rooftop courtyard or (ii) a constructing’s parapet roof and that subsequently inundates the inside of the constructing unambiguously constitutes ‘floor waters’ underneath Massachusetts regulation for the needs of the insurance coverage insurance policies at problem on this case?

The unusual a part of this case is that “floor waters” are a part of the definition of a “flood” within the insurance policies at problem.  Each insurance policies think about “Flood” a “Lined Reason behind Loss.” The insurance policies outline flood as:

A normal and momentary situation of partial or full inundation of usually dry land areas or construction(s) brought on by: The bizarre and fast accumulation or runoff of floor waters, waves, tides, tidal waves, tsunami, the discharge of water, the rising, overflowing or breaking of boundaries of nature or man-made our bodies of water; or the spray there from all whether or not pushed by wind or not[.]

On this uncommon case, the insurance coverage firms are arguing {that a} “flood” occurred on the roof as a result of a flood sublimit reduces the quantity payable.

A search of this weblog pointed to a related article, How Do You Outline “Floor Water” And Is It Lined Beneath My Coverage?:

In Union Road Furnishings and Carpet, Inc. v. Peerless Indemnity Insurance coverage Firm, Union’s property was severely broken by water when a considerable rainfall occurred within the space which prompted water to enter the property by the partitions, chimney and skylight. A lot of the harm was brought on by water that flowed into the ability from the car parking zone by the loading dock.

Peerless argued the water harm to Union’s enterprise private property was not an insured loss as a result of the harm was brought on by a ‘flood’ or by ‘floor water.’ Peerless additionally argued that the water that got here by the roof that additionally broken the enterprise private property was ‘floor water’ and due to the anti-concurrent clause, the contents weren’t insured.

In rejecting Peerless’ interpretation of the time period ‘floor water,’ the court docket, citing circumstances and authority from different jurisdictions, indicated that water from precipitation (rain or snow) flowing on the bottom outdoors of any outlined channel, however that water which accumulates on a roof from rain, doesn’t qualify.

The problem concerning the authorized definitions of ‘floor water’ and ‘flood’ differ from jurisdiction to jurisdiction and are available many sizes and styles. In case your insurance coverage provider denies your declare for ‘floor water’ or ‘flood,’ be sure you name one in every of our attorneys to help you together with your declare.

My curiosity in “floor water” has formally reached new heights – or ought to I say depths? It’s just like the mysterious character in a detective novel that retains popping up the place you least count on it. I’ll be diving into this widespread water harm protection battle with the keenness of a child in a puddle. Anticipate splashes of perception and possibly even a number of ripples of laughter as we discover this matter over the following week. Get your rain boots prepared as a result of we’re about to wade by some severely murky insurance coverage waters!

Thought For The Day

Canines are the leaders of the planet. When you see two life kinds, one in every of them’s making a poop, the opposite one’s carrying it for him, who would you assume is in cost?

—Jerry Seinfeld


1 Zurich American Ins. Co. v. Medical Properties Belief, No. 23-1167 (1st Cir. Dec. 19, 2023).

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