WATER DAMAGE EXCLUSION HELD OVERCOME BY VANDALISM PROXIMATE CAUSE

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WATER DAMAGE EXCLUSION HELD OVERCOME BY VANDALISM PROXIMATE CAUSE

Dwelling and personal property coverage under a Farmowners policy insured against vandalism or malicious mischief and contained an exclusion for loss caused by "....water below the surface of the ground including that which exerts pressure on or flows, seeps or leaks through sidewalks, driveways, foundations, walls, basement or other floors or doors, windows or any other openings in such sidewalks, driveways, foundations, walls or floors."

An outside water spigot was turned on by vandals, resulting in about 14,000 gallons of water pouring into the ground and through the foundation walls and into the basement of the house, until it was discovered and turned off by a neighbor after two days. The inside basement walls, floor coverings and personal property were damaged.

The insurer denied liability on the basis of the policy's water damage exclusion and, when the insureds filed suit, argued that coverage was not applicable because the policy did not insure against loss caused by ".... surface water" or "water below the surface of the ground including that which exerts pressure on or flows, seeps, or leaks through sidewalks, driveways, foundations. walls, basement or other floors or doors, windows or any other openings in such sidewalks, driveways, foundations, walls or floors."

The insureds appealed trial court judgment for the insurance company. The appeal court, with regard to conflict between a covered risk and an exclusion, quoted 5 Appleman, Insurance Law and Practice, 3083 at 309-311 (1970) as follows:

"Where a peril specifically insured against sets other causes in motion which in an unbroken sequence and connection between the act and the final loss, produced the result for which recovery is sought, the insured peril is regarded as the proximate cause of the entire loss..."

The court found the facts of the case under review to be clearly within the pertinent general rule. The judgment of the trial court was reversed in favor of the insureds and against the insurer.

(BARTHOLOMEW ET UX, Appellants v. CAMERON COUNTRY MUTUAL INSURANCE COMPANY, Respondent. Missouri Court of Appeals, Western District. No. WD 48683. June 7, 1994. CCH 1994 Fire and Casualty Cases, Paragraph 4876.)