Koncilja v. Trinity Universal Ins. Co.
| Decision Date | 19 November 1974 |
| Docket Number | No. 73--443,73--443 |
| Citation | 35 Colo.App. 27,528 P.2d 939 |
| Parties | John KONCILJA, d/b/a Koncilja Construction Company, Plaintiff-Appellee, v. TRINITY UNIVERSAL INSURANCE COMPANY Defendant-Appellant, Charles William Stansburge et al., Defendants. . I |
| Court | Colorado Court of Appeals |
Jenkins & Sandstrom, Gustave F. Sandstrom, Jr., Pueblo, for plaintiff-appellee.
Petersen & Fonda, Donald E. Abram, Pueblo, for defendant-appellant.
The denial by Trinity Universal Insurance Company of coverage under a homeowner's insurance policy issued by it precipitated the bringing of this action by the plaintiff, John Koncilja, doing business as Koncilja Construction Company, against Trinity, its adjuster, Lalich, and the homeowners, Charles William Tsansburge and Nancy L. Stansburge. There was no dispute by the parties as to the factual issues and the case was therefore determined upon motions for summary judgment. The trial court determined that the homeowner's policy issued by Trinity rendered it liable for the cost of repair incurred by the homeowners and owed to the plaintiff. Trinity appeals from the resulting judgment. We affirm.
The homeowner's policy insured the Stansburges against loss of property occurring as a result of:
'Accidental discharge, leakage or overflow of water or steam from within a plumbing, heating or airconditioning system or from within a domestic appliance . . . such loss shall include the cost of tearing out and replacing any part of the building covered necessary to effect repairs to the system or appliance from which the water or steam escapes.'
It was agreed by the parties that during the policy period a water pipe embedded within the concrete floor of the northeast portion of the Stansburge's house had broken. The broken water pipe caused water to soak into the ground beneath the house which in turn caused the ground to subside. A portion of the concrete flooring and a part of the house settled and cracked as a result. Immediately after this occurrence, the Stansburges notified Ray Bryan of the Bryan Holloran Insurance Agency from whom they had purchased the policy, who in turn contacted Lalich, and adjuster. Lalich viewed the damages and solicited bids for repair. The low bid made by Koncilja was for $2,800.88. Upon completion of the repairs by Koncilja, Lalich requested that the Stansburges submit a claim to Trinity. The claim submitted was subsequently denied by Trinity on the basis that the policy expressly excluded coverage for lossess occurring from causes such as the Stansburges had experienced. The policy provision upon which Trinity relies is set forth under 'additional exclusions,' to wit:
'This policy does not insure against loss: (2) caused by, resulting from, contributed to, or aggravated by any earth movement including but not limited to eathquake, volcanic eruption, landslide, mudflow, earth sinking, rising, or shifting; (3) caused by, resulting from contributed to or aggravated by any of the following: . . . (c) water below the surface of the ground including that which exerts pressure of or flows, seeps, or leaks through sidewalks, driveways, foundations, walls, basement or other floors or through doors, windows or other openings in such sidewalks, driveways, foundations, wall, or floors. . . .'
The trial court reasoned, in construing the contract as it applied to the stipulated facts, that the Stansburge's loss had been proximately caused by water escaping from within the plumbing system and was therefore a covered loss; and construed the exclusion to apply only to underground water which had not escaped from the domestic system or to earth movements caused by anything other than accidental discharge of water from this system.
The trial court was correct in determining that the accidental leakage and discharge of water upon and into the ground from within the plumbing...
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