What Is ‘Ensuing Water Damage’?

In January of this year, the Third District Court of Appeal of Florida decided an interesting case involving an insurer’s refusal to pay for the costs of repairing concrete slabs above a leaking drain line. In the lower court, the fact finder ruled in favor of the insured/homeowner, ordering the insurer to foot the bill. On immediate appeal, the insurer asserted that the policy in force did not require the insurer to cover the costs, and the court ultimately held in favor of the insurer, remanding the case with instructions to the lower court.

The case arose in Miami-Dade County and involved a 1950’s-era home sitting atop a concrete slab. The “sanitary drain lines” from the home ran from the dwelling underneath the concrete slab, making it impossible to repair the lines without drilling through (and essentially destroying) the foundational concrete. In 2010, the homeowners noticed their kitchen sink was draining slowly, and professionals determined the problem was associated with a break or failure in the drain line. However, no evidence was presented that any surrounding damage had occurred as a result of the suspected break. Moreover, the homeowners’ policy only covered repair to the surrounding areas (e.g., the concrete slab) if the water itself actually damaged the structure. Here, the damage would occur due to drilling through the concrete to fix the lines, not due to the water itself – and the insurer refused to pay.

At trial, the court acknowledged the language of the policy, but directed the insurer to pay nonetheless. On appeal, however, the court held that the language expressly referred to coverage for “ensuing water damage” only, which includes damage to surrounding areas directly caused by a defective sanitary drain line. Therefore, the appellate court found in favor of the insurance provider. However, the decision ultimately proved moot, as the pipe had been repaired without damage to the concrete slab in the interim. However, the court ensured the precedent was set in case the litigants – or any other party – wished to refile on this issue in the future.

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