Tree-lined residential drive in Boston, MA. The neighborhood kids were playing baseball in the street, and the big kid hit a home run; ball landed on the roof. It was a flat roof with a drain in the middle of it. The ball somehow rolled right onto the drain and completely blocked the top of it. The poor homeowner had no idea, and heavy rains came through that night, causing several inches of water to build up on the roof, eventually finding its way inside the house. This caused $20,000 in water damage to the interior of the building, and the insured is looking for coverage.
Notable Timestamps
[ 00:25 ] - The adjuster is wondering about two exclusions: (1) surface water, and (2) backup of drains. The policy is an ISO 00 03 05 11.
[ 01:33 ] - Would you give a ball back if it rolled onto your property?
[ 02:30 ] - A July 23, 2024 MA Supreme Court decision will likely be impactful on surface water issues.
[ 03:10 ] - Surface water typically applies to rain or melted snow entering a home from the yard or driveway. What about a patio 6 inches high? A deck 3 feet up? A roof?
[ 05:00 ] - Historically water on a roof was not considered surface water, but in the last decade many courts held that the surface water exclusion might apply to water on roofs. See Martinez v. Am. Family Mut. Ins. Co. 413 P.3d 201 (Colo. App. 2/09/17): "the rooftop of his home [was] a mere continuation of 'the earth's surface.'"
[ 07:30 ] - The MA Supreme Court's decision that water on a roof is not excluded as surface water only applies to MA, but other states may find it persuasive given the infrequency of major decisions on these issues.
[ 09:30 ] - The backup and overflow exclusion likely does not apply because the water never even entered the drain, much less backed up out of it.
[ 11:20 ] - The majority view of "water which backs up" terms it as water that flows in reverse.
[ 13:10 ] - Let's say the kids put the ball down the drain intentionally. Coverage A is all-risk, open peril; the loss is covered unless it's excluded. The exclusion for vandalism wouldn't apply as the home was not vacant for 60 days. That loss would likely be covered.
[ 15:00 ] - Let's say it was leaves blocking up the drain. Could faulty maintenance apply? That would be dependent on the severity of the build-up and other circumstances. Ensuing loss concerns may impact this issue. https://www.plrb.org/documents/massachusetts-ensuing-resulting-loss/
[ 17:50 ] - Tim provides a recap of the scenario and the points above.
Your PLRB Resources
Zurich American Insurance Company v. Medical Properties Trust, Inc. - https://www.plrb.org/documents/zurich-am-ins-co-v-med-properties-tr-inc-2024/
Flat Roof Drain Blockage on Commercial Building – PCQ.2024.07.26.twh.b - https://www.plrb.org/documents/flat-roof-drain-blockage-on-commercial-building-pcq-2024-07-26-twh-b/
Surface Water – "Act of Nature or Otherwise Caused" – PCQ.2021.10.31.twh.a - https://www.plrb.org/documents/surface-water-act-of-nature-or-otherwise-caused-pcq-2021-10-31-twh-a/
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