"One size fits all" is a phrase used to describe garments or accessories designed to suit all people. Over time, it has been used to refer to everything that is intended to be applied in all circumstances.
One size can obviously not fit all people. The same applies to "freezing" exclusions in the homeowner's insurance. Not every freezing rash is the same. Compare the following two freezing exclusions.
The ISO "Homeowners 3-Special Form" 1 excludes loss for the insured dwelling caused by discharge, leakage or overflow from a plumbing system or a household appliance caused by freezing unless the insured has used reasonable care to keep the heat in the home or turn off the water supply and drain all systems and appliances in water.
Allstate Insurance Company's "Deluxe Plus Homeowners Policy Form AP337" excludes loss for the insured home caused by discharge, leakage or overflow from a piping or household appliance caused by freezing, while the dwelling is vacant, undeveloped, constructed, unless it is vacant The insured has used reasonable caution to maintain the heat in the home or shut off the water supplying and draining all systems and appliances in water.
No exclusion applies if the insured has used reasonable care to maintain heat in the home or turn off the water supply and drain all systems and appliances in water. And Allstate freezing only applies if the loss occurs while the insured home is vacant, undeveloped, built.
The historic low temperatures that recently met Chicago and the Midwest have resulted in an influx of water damage such as water pipes breaking or bursting due to a build-up in water pressure caused by freezing water in an adjacent pipe section. The latest "polar vertex" reminded me of a previous water damage / frozen plumbing loss with Allstate Form AP337. These were facts.
The insured owned a single-family home in the Chicago area. He lived there with his wife. It was their usual place of residence. It contained their furniture, appliances, household items, personal items and other valuable and useful items. It was their residence.
The insured and his wife also owned a farm in Indiana. They left their residence on a Monday morning in January to travel to their farm to check the property. They did not intend to stay overnight; but the weather was bad when they came (snow) and they stopped because of anxiety about driving on the narrow roads.
They came home five days later and found water damage throughout their home. The home was a little cold inside when they arrived. The insured checked the oven and it was on. He did not move the thermostat for the heat before going to his yard. It was set at 68 degrees.
The insured reported the loss to his Allstate agent. Allstate retained an engineer to inspect the insured home, which considered that sufficient heat had not been maintained in the home to prevent freezing. Allstate denied coverage for the loss. The refusal referred to the freezing result, but the letter offered no factual explanation as to why it concerned this water loss.
Suit was filed against Allstate for breach of contract. Allstate claimed the freezing result as a sole defense and claimed that the insured home was vacant and / or unoccupied at the time of the loss and that the insured did not retain sufficient heat in the home to prevent freezing. After an initial initial exchange of findings, I moved for a summary assessment of the freezing result.
In Illinois, as in most, if not all, states, the insured bears evidence that his or her loss falls within the insurance policy contract. When the insured complies with this burden, the insurer must prove that the loss is covered by a policy clause that restricts or excludes coverage if he wishes to escape liability for loss. 2
The insurance contract in its form AP337 obliges Allstate to pay for sudden and accidental direct physical loss to the insured home, except as limited or excluded. The insured's burden of proof in this case was simple and limited. He only needs to prove that he suffered a sudden and accidental direct physical loss, which he clearly had in the form of water damage to the insured dwelling. The burden shifted to Allstate to prove the applicability of the freezing result. The arguments for why Allstate did not have and could not meet this burden were as follows.
First, Illinois courts have defined "idle" as "usually empty or deprived content". 3 Because furniture, appliances, household items, personal items and other belongings were at home at the loss, the insured dwelling was not vacant.
Secondly, Illinois courts have defined "unoccupied" as "no one lived in the home or actually had use or possession of the dwelling at the loss." 4 The insured and his wife owned the insured dwelling. They took it continuously since they bought it. They lived there. It was their usual place of residence. And that was their home. Therefore, the insured home was not "insignificant" at the time of the water loss.
Although the insured and his wife were away from it for five days, such temporary absence did not make the home uninhabited, as the insured and his wife intended to return home, and they never abandoned or waived it during this five-day period . 5
Third, the loss of a frozen tube was not caused. The source of the water loss was a water supply pipe for the second floor bathroom drain. The insured saw what appeared to be a small film of ice along the back of the vanity compartment where the pipe left. He didn't see ice cream anywhere else in the home. After he had given up the water, the assured saw that the copper shut-off valve was disconnected from the water supply pipe. While the insured was not required to prove the cause of the loss in order to maintain his burden under the insurance contract, if the waterways were caused by a worn, defective or impaired copper shut-off valve, the coverage would still be made for water damage, since form AP337 covers direct physical damage from sudden and accidental discharge of water from a pipe system caused by wear, latent defect, deterioration or mechanical degradation.
Finally, and alternatively, even if the loss was caused by a frozen tube and even if the home was vacant or vacant at the time of the loss, reasonable efforts were made to maintain the heat in the insured dwelling which the insured did by setting the thermostat for the heat at 68 degrees. . Allstate position – that the insured did not maintain sufficient heat in the home to prevent freezing – is contrary to the express language of the freezing result, requiring only the insured to use reasonable care to maintain heat in the insured home, and not to maintain sufficient heat for to prevent freezing. In that respect, even when the temperature is set to a high degree as 68, pipes along outer walls and in unheated places can still freeze.
Not surprisingly, Allstate agreed to settle the case before the court decided on the summary judgment. When confronted with a freezing exclusion, read it, understand what triggers its potential application, such as leave or occupancy, and assure the insurer of the cause of the water loss if there is any doubt about the application for exclusion, for example, if the loss was caused by freezing or by another danger such as mechanical breakdown or latent defect.
1 ISO Form HO 00 03 05 11.
Reedy Industries, Inc. v. Hartford Ins. Co., Illinois 306 Ill.App.3d 989 (5th dist. 1999).
3 Lundquist v Allstate Ins. Co. 314, App.3d 240, 245 (2nd dist. 2000). Thompson v Green Garden Mut. Ins. Co. 261 App.3d 286, 291 (3rd dist. 1994).
5 Gash v. Home Ins. Co. 153 Ill. App. 31 (4th dist. 1890). See also Foley v. Sonoma County Farmers & # 39; Mut. Ins. Co. 115 P.2d 1 (Cal. 1941).