INSURANCE: HOMEOWNER’S INSURANCE: POOL POP OUT: WATER EXCLUSION: COVERAGE DID NOT EXIST FOR DAMAGE CAUSED BY POOL POP OUT BECAUSE OF OPERATION OF WATER EXCLUSION AND ANTI CONCURRENT CAUSE PROVISION: ENSUING LOSS PROVISION WAS INAPPLICABLE; CIVIL PROCEDURE: SUMMARY JUDGMENT

Liberty Mutual Fire Insurance Company v. Martinez, ___ So. 3d ___, 40 Fla. L. Weekly D433 (Fla. 5th DCA February 13, 2015)

The homeowner’s pool popped out of the ground because of the hydrostatic pressure created by a tropical storm. The insurer denied coverage based upon an exclusion for “Water below the surface of the ground, including water which exerts pressure on . . . a . . . swimming pool.” The homeowner sued the insurer for breach of contract, the parties filed cross motions for summary judgment, and the trial court granted the homeowner’s motion based upon the ensuing loss provision of the policy because it “found that the direct cause of the [homeowners’] damage was the pool shell coming out of the ground, rather than the hydrostatic pressure.” The appellate court reversed based upon the anti-concurrent cause provision of the policy. An anti-concurrent cause provision excludes coverage for losses caused at least in part by a non-covered cause of loss even if a covered cause of loss contributes to the loss; it applies to “all losses directly and indirectly caused by [events that] are excluded from coverage.” Based on the anti-concurrent cause provision, the court found it unnecessary to consider the ensuing loss provision of the policy. An ensuing loss provision creates an exception to an exclusion. “An ensuing loss is a loss that occurs separate from but as a result of an excluded loss. . . . Ensuing loss exceptions are not applicable, however, if the ensuing loss was directly related to the original excluded risk.” In this case, the appellate court concluded that the homeowners did not sustain an ensuing loss. “Rather, the policy expressly excluded the [homeowners’] loss as it specifically excluded losses that occurred directly or indirectly from subsurface water pressure. In [the court’s] view, the damage . . . resulted directly or indirectly, from subsurface water pressure. Accordingly, [the court found it unnecessary to] look to the ensuing-loss provision.”

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