The insureds only realized they had a leak when their water bill was unusually high.
The insureds claimed they suffered a loss to their residence due to an under the slab pipe leak. The applicable policy provided coverage for direct loss to property, but only if that loss is a physical loss to property. Coverage was denied. The insured filed a Petition for Declaratory Relief. During the deposition of the insureds, testimony was obtained that there was no damage to the residence from the water leak.
The insureds also testified the only damage to the residence was caused by the plumber’s attempts to access the leak. The defense filed a Motion for Summary Judgment or in the Alternative a Motion to Dismiss.
At the hearing on same, Partner Gregg Margre argued, in support of the Motion for Summary Judgment, that prior to coverage being afforded for access to the plumbing system there must first be a direct physical loss to the property.
As the insureds stated during their deposition that there was no damage to the property as a result of water, there was clearly no physical loss to the property from the water leak. The insureds only realized they had a leak when their water bill was unusually high. As such, by the clear and unambiguous language in the policy there was no coverage for the damage caused by the plumber to access the leak.
Margre further argued that the Petition for Declaratory Relief should be dismissed due to the failure of the insureds to allege any specific facts or policy provisions which required judicial interpretation. As such, the Petition failed to state a cause of action.
The Court was reluctant to grant the Motion for Summary Judgment but granted the Motion to Dismiss without Prejudice to amend. However, due to the fact that testimony was secured during the insureds deposition proving that there was no physical loss to property, the Plaintiff’s attorney decided not to pursue the claim and has not amended the Complaint. As such, the dismissal is now final.