Old Dominion Ins. Co. v. Elysee, Inc.

• Decision Date: 23 June 1992
• Docket Number: No. 91-2701,91-2701
• Citation: 601 So.2d 1243
• Parties: 17 Fla. L. Weekly D1589 OLD DOMINION INSURANCE COMPANY, Appellant, v. ELYSEE, INC., Appellee.
• Court: Florida District Court of Appeals

Page 1243

601 So.2d 1243

17 Fla. L. Weekly D1589

OLD DOMINION INSURANCE COMPANY, Appellant, v. ELYSEE, INC., Appellee.

No. 91-2701.

District Court of Appeal of Florida,

First District.

June 23, 1992.

Rehearing Denied Aug. 3, 1992.

John F. Fannin and Mitchell A. Stone of Fannin & Tyler, P.A., Jacksonville, for appellant.

Robert M. Harris and Joshua A. Whitman of Fryefield & Whitman, Jacksonville, for appellee.

WOLF, Judge.

Appellant, Old Dominion Insurance Company (Old Dominion) appeals from a final order of partial summary judgment which found coverage under its insurance policy for damages sustained as a result of water that backed up from a main drain line outside the property of appellee (Elysee). Old Dominion asserts that the trial court erred in denying its motion for partial summary judgment on the issue of liability and in granting appellee's motion for partial summary judgment instead. We agree and reverse.

The appellee is the operator of a retail store at Regency Mall in Jacksonville. The appellee is insured with Old Dominion Insurance Company, the appellant. The appellee made a claim for payment of damages due to water backing up into its building, but the appellant asserted that the insurance policy did not provide coverage for such damage.

The exclusion asserted by Old Dominion in this case states:

B. EXCLUSIONS

1. We will not pay for loss or damage caused directly or indirectly by any of the following. Such loss or damage is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss.

....

g. Water

(1) Flood, surface water, waves, tides, tidal waves, overflow of any body of water, or their spray, all whether driven by wind or not;

(2) Mudslide or mudflow;

(3) Water that backs up from a sewer or drain.

(Emphasis added). At the summary judgment hearing, the deposition of Richard Alverson, the plumber who attended to the water problem, was relied on by both parties. According to Alverson's deposition, he went into the appellee's store to clean out the main sewer line, and was required to go 225 feet into the main line to clear a blockage. The appellee's store is approximately 300 feet from the manhole. The blockage was in the main line before the manhole, but outside appellee's premises. According to the plumber's testimony, it was that blockage which caused the flooding in the appellee's store: When other stores which were connected to the main line used their toilets or sinks, the water was forced out at appellee's store, the point of least resistance off the main line. Alverson explained that the main line leads to a manhole which acts like a distribution box to a larger diameter line, the larger diameter line leads to a lift station, which then leads to a treatment plant. The water that came in at the appellee's store never reached the manhole, lift station, or treatment area. The plumber described the sewage system in these words:

Okay, where the sewer begins, the sewer begins on store property. I see what you're trying to say now. The store--from the fixtures to what they call the store perimeter, which would be like the corridor, that would no longer be the store perimeter anymore. It would be to the back of the store, that would be the store's responsibility. And where it ties into the main line, say five foot from the rear of the store to the main line, there that becomes the mall's property.

The appellee filed a motion for partial summary judgment on the issue of liability based on Alverson's deposition. The appellant filed a cross motion for summary judgment in its favor. The trial court granted the partial summary judgment on liability in favor of the appellee, finding that the appellee's water damage was caused by the backing up of water from a blockage in the plumbing system "before the water reached a sewer or drain," concluding that the water damage did not occur as a result of water backing up from a sewer or drain.

There is no dispute between the parties concerning where the blockage occurred or the function of the pipe where the blockage occurred--the blockage was off appellee's premises in a main drain pipe that serviced the entire mall, at a point before sewage entered the city's sewage system. The only dispute concerns what is meant by the words "sewer" or "drain" utilized in appellant's insurance policy. These words are not defined in the policy.

When the operative language of an insurance policy is deemed to be ambiguous, the policy must be construed to provide coverage. Rigel v. National Casualty Co., 76 So.2d 285 (Fla.1954); Travelers Ins. Co. v. Bartoszewicz, 404 So.2d 1053 (Fla.1981); National Merchandise Co., Inc. v. United Service Auto Ass'n, 400 So.2d 526 (Fla.1981). While the terms "sewer" and "drain" are not defined in the insurance...