Liberty Mut. Fire Ins. Co. v. Martinez

Liberty Mut. Fire Ins. Co. v. Martinez

Opinion

 [*487]  COHEN, J.

Liberty Mutual Fire Insurance Company ("Liberty") appeals a final summary judgment entered in favor of its insureds, Nigel and Melissa Martinez. We reverse.

The facts of this case are undisputed. Liberty issued an all-risk insurance policy to the Martinezes insuring, inter alia, their residence and other structures located on their property. During a tropical storm, Nigel Martinez partially emptied his family's in-ground swimming pool because it was overflowing. The following day, he discovered that the pool had lifted out of the ground. As would be later agreed upon by experts, subsurface water accumulated underneath the pool during the storm, which exerted hydrostatic pressure on the partially emptied pool. This pressure caused the pool shell to lift out of the ground, damaging the shell as well as the pool deck, rock garden, and waterfall.

Thereafter, the Martinezes filed [**2]  a claim with Liberty, which was denied on the ground that the Water Exclusion provision in the policy excluded damage caused by hydrostatic pressure from coverage. That provision provides:

SECTION I - EXCLUSIONS

1. We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss.¹

. . . .

c. Water Damage, meaning:

(1) Flood, surface water, waves, tidal water, overflow of a body of water, or spray from any of these, whether or not driven by wind;

. . . .

(3) Water below the surface of the ground, including water which exerts pressure on or seeps or leaks through a building, sidewalk, driveway, foundation, swimming pool or other structure.

(Emphasis added).

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