Allstate Ins. Co. v. Smith, 4876
| Decision Date | 05 February 1970 |
| Docket Number | No. 4876,4876 |
| Citation | 450 S.W.2d 957 |
| Parties | ALLSTATE INSURANCE COMPANY, Appellant, v. Russell Loren SMITH and Dorothy K. Smith, Appellees. |
| Court | Texas Court of Appeals |
Watson & Weed, Waco, for appellant.
Haley, Fulbright, Winniford, Sessions & Bice, Waco, for appellees.
This is appeal by defendant-insurance company from judgment for plaintiffs-insured, for $452.33 in suit on a 'Homeowners Policy' issued plaintiff by defendant.
Plaintiffs Smith sued defendant insurance company, alleging defendant issued them a policy of insurance, insuring against loss or damage to their home located at 5118 Lake Arrowhead Drive in Waco, Texas; that on September 7, 1968 while such policy was in effect, a water pipe in a concrete slab in the house burst, causing damage and loss amounting to $452.33; and that defendants denied liability for such loss.
Defendant by answer asserted plaintiffs loss was excluded by provision 'i' of its policy which provided that the insurance does not cover:
.
Trial was before the court without a jury which rendered judgment for plaintiff for $452.33.
The trial court filed findings and conclusions, pertinent of which follow:
FINDINGS OF FACT
1) The policy of insurance was issued to plaintiffs by defendant, and was in full force and effect.
2) A section of water pipe burst in September 1968, causing water damage to the insured premises.
3) Water leaking from the reptured pipe caused the wooden beams and plates in the vicinity of the pipe to begin rotting.
4) $452.33 was necessarily expended for repairs to plaintiffs residence, all of which repairs were necessitated and occasioned by the rupture of the water pipe.
1) The policy covered all risks of physical loss except as specifically excluded.
2) Loss resulting from water damage is a risk of physical loss not otherwise excluded by the terms of the policy.
3) The rotting and deterioration of the wooden beams and plates resulted from water leakage, and exclusion 'i' does not bar recovery, because the policy further provides that exclusion 'i' shall not apply to water damage.
Defendant appeals on 4 points contending the trial court erred in finding:
1) That exclusion 'i' does not bar recovery.
2) That the ruptured water pipe caused damage to the insured premises.
3) That $452.33 is recoverable as damages necessarily incident to the water damage and to protect the property from further damage.
4) That water leaking from the ruptured pipe caused wooden beams and plates to begin rotting.
The policy insures against 'all risks of physical loss' except as excluded. Exclusion 'i' states the policy does not cover loss by 'inherent vice'. The policy further provides:
'* * * Exclusion 'i' * * * shall not apply to ensuing loss caused by * * * Water damage, or * * * provided such losses would otherwise be covered under this policy.'
The evidence reflects the house was approximately 3 years old; that it was built on a concrete slab; that the rupture in a copper...
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