Blaylock v. American Guarantee and Liability Ins. Co.

• Decision Date: 20 October 1981
• Docket Number: No. 8937,8937
• Citation: 626 S.W.2d 541
• Parties: Elizabeth BLAYLOCK and The Estate of Lloyd Blaylock, Deceased, Appellants, v. AMERICAN GUARANTEE AND LIABILITY INSURANCE COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 541

626 S.W.2d 541

Elizabeth BLAYLOCK and The Estate of Lloyd Blaylock Deceased, Appellants, v. AMERICAN GUARANTEE AND LIABILITY INSURANCE COMPANY, Appellee.

No. 8937.

Court of Appeals of Texas, Texarkana.

Oct. 20, 1981.

Rehearing Denied Dec. 8, 1981.

Pat Reed, Dallas, for appellants.

Christopher A. Payne, Vial, Hamilton, Koch, Tubb, Knox and Stradley, Dallas, for appellee.

CORNELIUS, Chief Justice.

This is an appeal from a take nothing judgment rendered in the non-jury trial of a suit seeking payment under a homeowner's insurance policy for damages to the insured's swimming pool and its appurtenant plumbing and fixtures. Both parties agree that the sole issue to be determined is whether recovery for the loss is precluded by the terms of any of four particular exclusions of coverage contained in the insurance policy.

The facts, except on the question of causation, are undisputed. The City of Dallas experienced a severe ice storm the evening of December 31, 1978, and early morning of January 1, 1979. Mrs. Blaylock, who lived alone, was out of town with her son. They arrived back at her home in Dallas at about 7:30 p. m. on December 31. They discovered that the electric power was off, so Mrs. Blaylock went home with her son to spend the night. Sometime between 2:30 a. m. and 12:00 noon on January 1, 1979, the water in the swimming pool's circulation system froze, causing damage to the water lines, filter, pump, heater, motors and pool sweep. The water in the lines, filter, and basket strainer froze solid, the filter burst open, the heat exchangers were broken by the freezing water, the pool sweep, pump and motor were frozen, and the motor was burned out. Blaylock's evidence indicated that ice collecting on trees caused some of the limbs to break and fall on certain electric lines, and that the resulting power failure caused the water in the plumbing to stop circulating, which in turn caused it to freeze.

American Guarantee relies on the following four exclusions of coverage contained in the policy:

"k. Loss under Coverage A caused by settling, cracking, bulging, shrinkage, or expansion of foundations, walls, floors, ceilings, roof structures, walks, drives, curbs, fences, retaining walls or swimming pools."

"e. Loss caused by or resulting from freezing while the building is unoccupied unless the Insured shall have exercised due diligence with respect to maintaining heat in the building or unless plumbing, heating and air-conditioning systems had been drained and the water supply shut off during such unoccupancy."

"a. Loss to electrical appliances, devices, or wiring caused by electricity, other than lightning."

"i. Loss caused by inherent vice, wear and tear, deterioration; rust, rot, mold or other fungi; dampness of atmosphere, extremes of temperature; contamination; vermin, termites, moths or other insects."

The burden was on Mrs. Blaylock to establish that her loss did not come within the exclusions of the policy. Tex.R.Civ.P. 94; Travelers Indemnity Co. v. McKillip, 469 S.W.2d 160 ...