Sauer v. General Insurance

KINCAID, J. pro tem.

*

Plaintiffs appeal from a judgment in favor of defendant insurance company following a trial. Plaintiffs by their complaint herein seek declaratory relief based upon an insurance policy issued by defendant on May 26, 1959, denominated “Homeowners Policy” covering their residential premises.

They allege that about April 10, 1961, while the policy was in effect, their residence sustained substantial damage to the foundation, walls, floors and other portions of the building in that the foundation cracked and settled, the walls and ceilings cracked, the floors and doors warped and there was a general settling, twisting and warping of the house. That about May 1, 1961, they discovered that one of the pressure water pipes underneath the dwelling but above ground had accidentally sprung a leak during the policy period, and had been discharging water into the ground for some time, causing an area of earth beneath the house to become soaked and muddy which, in turn, caused the foundation piers of the residence to settle, resulting in the described twisting, warping and cracking. That immediately upon discovery they notified defendant and furnished proof of loss and performed all conditions of the policy required of them. That on May 17, 1961, defendant advised plaintiffs in writing of rejection of their claim on the ground that the damage they had sustained was not covered by the said Homeowners Policy.

Plaintiffs further allege that said policy does provide insurance coverage for the damage so sustained by them in that, among other things, it provides: “Section IX. Perils Insured Against . . . This policy insures against all direct loss to the property covered caused by: ... 15. Accidental discharge, leakage or overflow of water or steam from within a plumbing, heating, or air conditioning system or domestic appliance, as well as the cost of tearing out and replacing any part of the building (a) covered required to effect repairs to the system or appliance from which the water or steam escapes. (A, C, D, B, G, K).”

[277]

Defendant, while admitting that plaintiffs’ building settled and that the damages alleged resulted from such settling, denies that its policy of insurance covers such damage. By way of affirmative defenses, defendant alleges three claimed exclusionary clauses in said policy which it contends exclude it from liability to plaintiffs herein. They are first: “4.