Sad slab story
Miguel and Annette Maspons owned a house that was built in 1957 on a poured concrete slab. Sanitary drain lines for the house were located under the slab and made of cast iron pipe.
In December 2010, the Maspons noticed that their kitchen sink was draining slowly. On February 8, 2011, they hired Water Leak Detectors, which determined through underground videography that a break or failure existed in the sanitary drain line under the kitchen floor. On March 21, 2011, a public adjuster retained by the Maspons reported to their insurer, Homeowners Choice Property & Casualty, that the drain line under the floor of the property was “broken” and was causing the sink to drain slowly.
On March 28, 2011, Homeowners Choice hired a plumbing company to inspect the property. Using similar technology, the inspector found a large hole in the “bottom sweep fitting” of the sanitary drainpipe that served the kitchen, turning it toward the hall bathroom. The inspector also found a second hole in the line, and “scale” and “detritus” in other drain lines it examined. The Maspons did not claim that the broken drainpipe caused any water damage to the interior of the house, and no evidence existed that water seepage from the pipe had caused any damage under the slab of the house. As Annette Maspons testified in her deposition, “I won’t know what other damages there are until the broken pipe is dug up.”
The court found that the Masponses’ policy did not provide coverage for the repair and replacement of the pipe, but that Homeowners Choice was responsible for the greater cost of tearing out and replacing the slab to make the repair. Homeowners Choice appealed the latter decision.
On appeal, the court noted that it was clear that the failure of the drainpipe to perform its function constituted a “direct” and “physical” loss to the property within the meaning of the policy. The court then pointed to the ensuing loss provision of the policy, which provided coverage for an ensuing loss that was not specifically excluded. Although Homeowners Choice was not obligated to compensate the Masponses for the corroded drainpipe, if the Masponses suffered consequential loss as a result of the corroded pipe and that consequential or “ensuing” loss was not excluded under another policy provision, the loss was covered.
The court stated that at the time of the summary judgment proceeding the slab had not been opened. No evidence existed that the water exiting the pipe had caused any damage to its surroundings. Thus the trial court erred by entering judgment against Homeowners Choice for the cost of the repair and replacement of the slab necessary to reach the broken pipe at this time. On the other hand, the court said, it was not inconceivable that such evidence might surface in the future. For this reason, the court reversed the trial court’s decision and remanded the case for entry of judgment in favor of Homeowners Choice, without prejudice to the Masponses’ filing another claim of loss at a later date, if appropriate.
Homeowners Choice Property & Casualty vs. Miguel Maspons et al.-District Court of Appeal of Florida, Third District-January 18, 2017-No. 3D14–1310.
