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ARTICLE ID 195746

$________ Insurance Obligation – Wrongful denial of property damage claim – Water and mold damage to condominium unit.

U.S. District Court, Southern, Florida

The plaintiff husband and wife brought this direct action against the defendant insurance company under the plaintiffs’ homeowners’ policy. The plaintiffs alleged that the defendant wrongfully denied a property damage claim caused by a sudden discharge of water. The defendant argued that the damage at issue was not caused by a sudden or accidental discharge of water, and therefore, was not covered under the policy issued to the plaintiffs.

The plaintiffs owned a condominium unit on Fisher Island, accessible only by ferry. The plaintiffs alleged that a shower pan (a waterproof "pan" placed beneath the floor of a shower to prevent leaking) in the bathroom of the master bedroom burst and caused a flood of water, which caused water damage and mold to an the master bedroom and den.

The plaintiffs’ expert opined that the shower pan leaked suddenly as evidenced by efflorescence on the shower tile floor and other factors, like the absence of mold or discoloration below the shower pan.

The plaintiffs’ expert testified that stains high on the wood framing indicated a " top down" leak coming from the building drainage pipes, not the floor level shower pan in the master bathroom. The plaintiffs maintained that a rusted drainage pipe – which carried water (sea sprayed salt water) from the spa deck above – did not have a proper pitch. Therefore, the drainage pipe collected sea sprayed water in it until it leaked through into the plaintiffs’ wall partition, according to the plaintiffs’ claims. In addition, the plaintiffs argued that there was no standing water found by a telephone repair man who was in the den the day before the flooding occurred. The plaintiffs alleged that the defendant breached the insurance contract by failing to pay for the property damage sustained.

The plaintiffs contended that they had to move out of the unit for extensive repairs, including removal of the marble in the shower and surrounding bathroom and repair and replacement of the master bathroom. The plaintiff husband died prior to trial, and the case was continued by the plaintiff wife.

The defendant argued that the shower pan leak was not “sudden and accidental,”since there was evidence of "continuous leakage or seepage." A rusted metal room partition between the master bedroom shower area and the den next door established long-term leakage from the master shower pan, according to the defense.The jury found for the plaintiffs in the amount of $________. The plaintiff also recovered prejudgment interest and attorney fees.

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