‘Surface Water’ Exclusion Applies Even When Surface Is Off The Ground

Homeowners insurance did not cover rain runoff from a patio that led to mold and water damage to the adjoining house, the Texas Court of Appeals said.  The case is Crocker v. American National General Insurance Co., — SW3d —, 2007 WL 29708 (Tex.App.-Dallas January 5, 2007). Here’s a pdf of the case from the court’s website.

The policy contained an exclusion for "loss caused by or resulting from flood, surface water, waves . . . whether or not driven by wind."  The homeowners, Julie and Johnny Crocker, argued that the water that fell on the patio, which was about a foot above the level of the yard, was not surface water any more than rain that fell on the roof would be surface water.  This led to an interesting chase by the court to pin down what constitutes surface water and what does not: ultimately, the court accepted a formula where water that falls on the surface it finds is surface water, unless it encounters some kind of human-created channel or trench that transforms its force.  If, the court said, encountering any man-made alteration of the earth at all were enough to prevent water from being surface water, there would be no such thing as surface water within the meaning of the policy.

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