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T.H.E. Ins. Co. v. Charles Boyer Children's Trust

United States District Court for the Middle District of Pennsylvania

October 11, 2006, Decided ; October 11, 2006, Filed




Plaintiff T.H.E. Insurance Company ("TIC") seeks a declaratory judgment that the insurance policy it issued to Defendant Charles Boyer Children's Trust D/B/A Boyer's Westwood Lanes does not cover the mud and water damage to its bowling alley following a heavy rainstorm. TIC contends that it is not obligated to cover the loss by reason of the policy's earth movement and water exclusions.

Presently before the Court are the motion for summary judgment filed by TIC and the motion for partial summary judgment filed by Defendant. (Dkt. Entries 21, 24.) Because the damage at issue in this case is excluded by the surface water exclusion, TIC's motion for summary [**2]  judgment will be granted, and the motion for summary judgment of Defendant will be denied.


 [**3]  Defendant owns a bowling alley in Pottsville, Pennsylvania. (Def.'s Statement of Material Facts ("SMF"), Dkt. Entry 26,  [*287]  P 2.) During the night of July 11, 2004, a heavy rainstorm struck the Pottsville area. (Id., at P 1.) In the early hours of July 12, 2004, Defendant's bowling alley suffered substantial damage from mud and water that flowed in when a door on the east side of the property collapsed. (Id., at P 2.) Evidence of water and mud was measured at 42 inches above the floor inside the building, and 51 inches above the ground surface outside the building. (NFC Report, Dkt. Entry 22, Ex. C, at 4.) Though the actual amount is in dispute, Defendant estimates the damage to be approximately $ 2,000,000. (Pl.'s Response to Def.'s SMF ("Pl.'s Response"), Dkt. Entry 28, at P 3.)

At some point during the night of July 11-12, 2004, the embankment to the south of the bowling alley collapsed, leaving an open hole approximately 12 feet in width and 30 feet in length. The collapse was caused by the failure of a 36-inch corrugated metal sewer pipe buried in the embankment. The sewer pipe ruptured at the collar of its joints. Defendant asserts that the pipe ruptured because the metal [**4]  bands that connected the pipe's joints were loosely fitted, while Plaintiff contends that the pipe was running over capacity. (NFC Report, Dkt. Entry 22, Ex. C, at 6-9; Quad3 Report, Dkt. Entry 22, Ex. E, at 5.)

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455 F. Supp. 2d 284 *; 2006 U.S. Dist. LEXIS 73983 **


Subsequent History: Affirmed by T.H.E. Ins. Co. v. Charles Boyer Childrens Trust, 2008 U.S. App. LEXIS 5729 (3d Cir. Pa., Mar. 18, 2008)


surface water, coverage, earth, collapse, bowling alley, lead-in, contributed, embankment, ambiguous, insurer, flood, insurance policy, doctrine of proximate cause, summary judgment motion, causes, proximate cause, east side, interruption, accumulated, asserts, door, summary judgment, parking lot, concurrently, all-risk, sequence, pipe, mud, proximate, premises

Civil Procedure, Summary Judgment, Motions for Summary Judgment, General Overview, Supporting Materials, Entitlement as Matter of Law, Burdens of Proof, Insurance Law, Claim, Contract & Practice Issues, Policy Interpretation, Property Insurance, Coverage, All Risks, Obligations, Covered Losses, Plain Language, Exclusions, Earth Movement, Types of Insurance