The Mystery of the Eternal Plumbing Leak and the Burden of Proof | Property Insurance Protection Law Blog

Drip Drip Drip Drip Plumbing and pipe leaks are one of life’s inconveniences, but what happens when it is not possible to determine how long a leak has been active?

In a case in Florida, Deshazior v. Safepoint Insurance Company,¹ the insured discovered a leak and hired a restoration company to mitigate any further damage. The homeowners notified their insurer, and the insurer then dispatched two claims adjusters and a professional engineer to evaluate the damaged property.² The insured had already disposed of the damaged parts of the pipes, the wall and the baseboards.³

The insurer̵

7;s inspector and forensic technician concluded that the property damage appeared to have been caused by prolonged leakage and exposure to water, along with failure to maintain the pipes in and around the bathroom where the alleged leak occurred. Safepoint then contested the claim on the basis of a slow leak/leakage exclusively in the policy.⁴

The insureds argued here that summary judgment should not have been granted in favor of Safepoint on this issue based on the “constant or repeated leakage” exclusion provision of their policy because there were differing expert opinions as to whether the duration of the leakage was sudden or long-term.⁵

The insured’s expert testified at a deposition that he could not determine how long the leak had been active and also admitted in his deposition that he was not an expert in evaluating the duration of the leak.⁶

At the same time, Safepoint had submitted evidence that the damage was likely caused by slow seepage or leakage of water over a period of weeks or months.⁷

In Florida, since Safepoint submitted this evidence, the burden had shifted to the insureds to introduce sufficient evidence to overcome summary judgment and show that the damage was instead caused by a one-time occurrence of accidental water.⁸

The court held that because the insured could not provide evidence to meet their own burden, the loss was not covered when the time the leak had been active could not be determined.⁹

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¹ Deshazior v. Safepoint Ins. Co.305 So.3d 752, 753 (Fla. Dist. Ct. App. 2020).

² Id.

³ Id.

⁴ Id. at 753-754.

⁵ Id. at 754.

⁶ Id.

⁷ Id. at 755.

⁸ Id.

⁹ Id. at 754-755.