Park v. Hanover Ins. Co.

Decision Date14 July 1969
Docket NumberNo. 7930,7930
Citation443 S.W.2d 940
PartiesJames Eckle PARK et ux., Appellants, v. The HANOVER INSURANCE COMPANY, Appellee. . Amarillo
CourtTexas Court of Appeals

Sanders, Miller & Baker, Robert R. Sanders, Amarillo, on appeal only, for appellants.

Underwood, Wilson, Sutton, Heare & Berry, Harlow Sprouse, Amarillo, on appeal only, for appellee.

DENTON, Chief Justice.

Appellants, James Eckle Park and wife, brought this suit against The Hanover Insurance Company to recover for damages to their residence under a standard homeowner's policy. Defendant's motion for summary judgment was granted.

There is no dispute as to the material facts. In May, 1967 it was discovered a water line leading into the Park home was split near the point it entered the house beneath the foundation. Excessive rust was found at the point of the break in the line. Attention was brought to the apparent leakage when the water meter indicated an excessive use of water for the previous month. The meter showed approximately 158,000 gallons of water had been consumed as compared to a normal monthly consumption ranging from 9 to 20,000 gallons, depending on the weather conditions. No physical evidence of the leak was noticed until the excess amount of water used was noted. The escaped water remained under the surface and did not come in contact with the house itself except the concrete foundation upon which the house sat. There is no question but that the softened subsoil resulted in a shifting of the foundation causing cracks in the walls, sidewalks and driveway of appellants' home.

The policy sued on insured appellants against 'all risks of physical loss' to their home 'except as otherwise excluded'. The insurer pleaded the following exclusions:

'This insurance does not cover: (d) loss caused by or resulting from:

(3) water below the surface of the ground including that which exerts pressure on (or flows, seeps or breaks through) sidewalks, driveways, swimming pools, foundations, walls, basements or other floors, or through doors, windows or any other openings in such sidewalks, driveways, foundations, walls or floors;

(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.

The foregoing Exclusions a through k shall not apply to ensuing loss caused by fire, smoke or explosion and Exclusions i, j and k shall not apply to ensuing loss caused by collapse of building, or any part thereof, water damage or breakage of glass which constitutes a part of the building, provided such losses would otherwise be covered under this policy.'

The plaintiffs contend the loss was legally caused by accidental discharge or leakage of water from the water pipe, and was not within the two pleaded exclusions dealing with water below the surface in d(3) or settling or cracking, et cetera, in exclusion k. Their position is the proximate cause of the loss is the accidental leakage of the water and that exclusion d(3) does not exclude this event; that this exclusion deals only with underground water of natural origin rather than from artificial means. Appellants argue the initial cause of their loss is the accidental discharge of the water and that other factors, such as the water below the surface, was a successive link in the chain of causation rather than a cause of the loss. This interpretation is not compatible with the clear language of the policy and the uncontradicted facts. It may be more forcibly argued the initial cause of the...

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19 cases
  • Fiess v. State Farm Lloyds
    • United States
    • Texas Supreme Court
    • March 30, 2005
    ...See also Allstate Ins. Co. v. Smith, 450 S.W.2d 957 (Tex. Civ. App.—Waco 1970, no writ) (following Holm). Similarly, in Park v. Hanover Ins. Co., 443 S.W.2d 940, 942 (Tex. Civ. App.— Amarillo 1969, no writ), the court stated that an ensuing loss is covered if it results from water damage an......
  • Holcomb v. U.S. Fire Ins. Co., 8017SC878
    • United States
    • North Carolina Court of Appeals
    • June 16, 1981
    ...the language of Exclusion 1. Krug v. Millers' Mutual Insurance Ass'n., 209 Kan. 111, 495 P.2d 949 (1972); Park v. Hanover Insurance Company, 443 S.W.2d 940 (Tex.Civ.App.1969). Both cases concerned coverage provisions similar to Peril 15 and exclusions similar to Exclusion 1. We find more ap......
  • Jones v. Columbia Mut. Ins. Co.
    • United States
    • Missouri Court of Appeals
    • November 6, 1985
    ...P.2d 949 (1972); Todisco v. National Fire Insurance Co. of Hartford, 356 Mass. 736, 254 N.E.2d 787 (1970); and Park v. Hanover Insurance Co., 443 S.W.2d 940 (Tex.Civ.App.1969), apparently disapproved in National Surety Corp. v. Adrian Associates, 650 S.W.2d 67 As defendant urges, exclusion ......
  • Krug v. Millers' Mut. Ins. Ass'n of Ill., 46285
    • United States
    • Kansas Supreme Court
    • April 8, 1972
    ...coverage under peril No. 15, insuring against accidental leakage of water from within a plumbing system. (Park v. Hanover Insurance Company, 443 S.W.2d 940 (Tex.Civ.App.1969).) In conclusion we find that the trial court did not err in entering summary judgment for the appellee in this The j......
  • Request a trial to view additional results
1 books & journal articles
    • United States
    • Full Court Press Zalma on Property and Casualty Insurance
    • Invalid date
    ...also Allstate Ins. Co. v. Smith, 450 S.W.2d 957 (Tex. Civ. App. 1970, no writ) (following Holm). Similarly, in Park v. Hanover Ins. Co., 443 S.W.2d 940, 942 (Tex. Civ. App. 1969, no writ), the court stated that an ensuing loss is covered if it results from water damage and is not otherwise ......

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