Finn v. Continental Insurance

Opinion

LOW, P. J.

Where a homeowner’s broad peril policy for property damage excludes damage from “continuous or repeated seepage or leakage” from the plumbing system, the insurer cannot be made liable for such leakage damage on the theory that the efficient proximate cause of the leakage was a sudden break in the pipe, an included peril.

[71]

Eileen Finn, as executrix of the will of her mother, Mary Finn, sued Continental Insurance Company for breach of contract and bad faith, arising from defendant’s failure to pay a claim on Mary Finn’s homeowner’s policy. The superior court granted defendant’s motion for summary judgment. We affirm.

On appeal from a grant of summary judgment, the question before us is whether the record establishes that there are no triable issues of fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)

Mary Finn’s homeowner’s insurance policy for property damage was of the “broad perils” or “all risks” variety; it covered loss or damage from any cause which was not expressly excluded. The policy’s exclusion (j) stated in part: “Continuous or Repeated Seepage or Leakage. We do not cover loss to a building caused by continuous or repeated seepage or leakage of water or steam which occurs over a period of weeks, months or years from within a plumbing . . . system . . . .”

Mary Finn discovered that leaking water from a broken sewer pipe had damaged her foundation and resulted in settling, and made a claim on her policy. Defendant submitted declarations from the plumber who discovered the broken pipe, an engineer who inspected the damaged home and a contractor who bid on the repairs, as well as the deposition testimony of the contractor who made the repairs. All stated that the leakage from the broken pipe, and the resulting damage, had occurred over a period estimated as from six months to several years. Plaintiff submitted no evidence disputing the fact that the sewer pipe had leaked for months or years.

Plaintiff contends that the grant of summary judgment for defendant was erroneous because a triable issue of fact remains as to whether the break in the pipe occurred suddenly or through gradual wear. She argues that a sudden break is a covered peril and that such a sudden break was the efficient proximate cause of the leakage here, rendering all the damage covered under the rule of