Bartholomew v. Cameron Country Mut. Ins. Co., WD
| Decision Date | 07 June 1994 |
| Docket Number | No. WD,WD |
| Citation | 882 S.W.2d 173 |
| Parties | Nick BARTHOLOMEW and Cheryl Bartholomew, Appellants, v. CAMERON COUNTRY MUTUAL INSURANCE COMPANY, Respondent. 48683. |
| Court | Missouri Court of Appeals |
David P. Macoubrie and Dana J. Macoubrie, Cleaveland, Macoubrie and Cox, Chillicothe, for appellants.
Lawrence W. Ferguson, Susan Ford Robertson, Knight, Ford, Wright, Atwill, Parshall & Baker, Columbia, for respondent.
Before TURNAGE, C.J., and FENNER and SPINDEN, JJ.
Nick Bartholomew and his wife, Cheryl, filed suit against Cameron Country Mutual Insurance Company on a policy of insurance for damages caused by vandals. Cameron contended the loss was excluded under an exclusion clause in the policy and filed a motion for judgment on the pleadings which the court sustained. Bartholomew contends the loss was not excluded. Reversed and remanded.
Cameron issued an insurance policy to Bartholomew insuring a farm dwelling. The policy contained an endorsement which provided coverage for vandalism or malicious mischief. The policy also contained the following exclusion:
C. WATER EXCLUSION: This policy does not insure against loss caused by, resulting from, contributed to or aggravated by any of the following:
1. flood, surface water, waves, tidal water or tidal wave, overflow of streams or other bodies of water, or spray from any of the foregoing, all whether driven by wind or not;
2. water which backs up through sewers or drains; or
3. water below the surface of the ground including that which exerts pressure on or flows, seeps or leaks through sidewalks, driveways, foundations, walls, basement or other floors or doors, windows or any other openings in such sidewalks, driveways, foundations, walls or floors.
About July 16 or 17, 1992 vandals turned on an outside water spigot on the Bartholomew home while the Bartholomews were away on vacation. The spigot remained on for about two days when it was discovered by a neighbor. During the time the water was on about 14,000 gallons of water poured into the ground next to the foundation of the Bartholomew home. The water ran into the ground and through the foundation walls and into the basement. The result was damage to the inside basement walls, floor coverings, and the contents located in the basement.
The parties agreed that the water spigot was turned on by vandals but Cameron contends that the water exclusion applies and it is not responsible for the water damage to the basement and contents.
No Missouri case precisely on point has been cited or located. However, a strikingly similar case is Franklin Packaging Co. v. California Union Ins. Co., 171 N.J.Super. 188, 408 A.2d 448 (1979). In that case there was coverage for vandalism and malicious mischief and an identical water exclusion to that in the case at bar. In Franklin, vandals broke into a warehouse and drove a truck into a water cooled air conditioning unit which broke a valve and resulted in a constant flow of water. Although the air conditioning unit was connected with a drain, the drain was stopped up with the result that water backed up in the building which caused damage to the inventory.
In Franklin the defense was that the damage was caused by water which was excluded under the policy. The court disagreed and stated:
The general rule applicable to a factual context which presents a facial conflict between the risk covered and an exclusion is found in 5 Appleman, Insurance Law and Practice, § 3083 at 309-311 (1970):
Where a peril specifically insured against sets other causes in motion which in an unbroken sequence and...
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