Rodin v. State Farm Fire & Cas. Co., 61365
| Decision Date | 24 November 1992 |
| Docket Number | No. 61365,61365 |
| Citation | 844 S.W.2d 537 |
| Court | Missouri Court of Appeals |
| Parties | Ervin RODIN and Sarah Rodin, Appellants, v. STATE FARM FIRE & CASUALTY CO., Respondent. |
Blair K. Drazic, St. Louis, for appellants.
Kevin P. Schnurbusch, St. Louis, for respondent.
Plaintiffs Ervin and Sarah Rodin appeal from a judgment entered in the Circuit Court of St. Louis County.
Plaintiffs' home was insured by defendant State Farm Fire & Casualty Company. In May, 1989, roots in the Metropolitan Sewer District's (MSD) system caused sewage to back up into the homes of the plaintiffs and their neighbor. Ervin Rodin described the eight inches of effluent that entered his basement as an odorous, viscous, black liquid with solid matter floating in it. He further stated that the liquid was definitely not water.
Plaintiffs filed suit against State Farm to recover their losses from the sewage backup. State Farm filed a motion for summary judgment stating that its policy did not cover water damage caused by water which backs up through sewers or drains. State Farm filed the affidavits of its adjuster and a MSD maintenance foreman in support of its motion. The MSD foreman stated that the blockage in the main sewer line caused water from customer's homes further up the line to back up into plaintiffs' home. He further stated that the backup would contain water from the drains and toilets in customers' houses and possibly rain or surface water misdirected into the sanitary sewer system. The adjuster stated that water had backed up into the basement and caused water damage. Plaintiffs countered with a cross-motion for summary judgment and Ervin Rodin's affidavit that the substance was not water. The trial court granted State Farm's motion for summary judgment, finding that coverage was excluded because the damage was caused by the back up of water and sewage into plaintiffs' home. Plaintiffs appeal. We affirm.
Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 74.04(c); Cape Retirement Community, Inc. v. Kuehle, 798 S.W.2d 201, 202 (Mo.App.1990). The motion need not rest on unassailable proof. Irwin v. Wal-Mart Stores, Inc., 813 S.W.2d 99, 101 (Mo.App.1991). To overcome a motion for summary judgment the opposing party may not rest upon mere allegations or denials, but must set forth specific facts that demonstrate the existence of an outstanding genuine issue of material fact. Id. Mere doubt and speculation do not create a genuine issue of material fact. Id. at 102. Rather, the record must demonstrate a factual question that would permit a reasonable jury to return a verdict for the non-moving party. Id.
The pertinent policy exclusion provides:
We do not insure for loss which would not have occurred in the absence of one or more of the following excluded events. We do not insure for such loss regardless of: a) the cause of the excluded event; or b) other causes of the loss; or c) whether other causes acted concurrently or in any sequence with the excluded event to produce the loss.
* * * * * *
c. Water damage, meaning:
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(2) Water which backs up through sewers or drains:
Plaintiffs argue that the damage they sustained was not...
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