Between the Lines

A Discussion of Case Law and Statutory Law Affecting Commercial Lines of Insurance

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Seepage or Surface Water? No Need to Split Hairs if an ACC Clause Applies.

In two earlier posts (Water, Water Everywhere and Concurrent Confusion), we discussed anti-concurrent causation (ACC) clauses.  ACC clauses are provisions in insurance policies (typically first-party policies) that state that if a loss is caused by an excluded risk, the loss is not covered even if other, covered risks contributed to the loss.

In Ella Boazava v. Safety Insurance Co., 462 Mass. 346 (2012), the SJC reaffirmed that Massachusetts courts enforce ACC clauses, at least in the context of first-party property insurance.  In Boazava, a homeowner discovered that for years, water had been seeping from a concrete patio onto her home’s foundation.  By the time the homeowner discovered the problem, the damage was extensive.  The homeowner argued that the damage fell within her homeowner’s policy because the policy covered damage caused by hidden seepage of water.  The insurer, disagreeing, denied coverage based on an exclusion for loss caused by “surface water.”

The SJC concluded that the loss was not covered.  The water that seeped into the house, the SJC found, had to be rain and melted snow, and rain and melted snow are “surface water.”  Therefore, the insurer properly had relied on the exclusion for damage caused by “surface water.”  The SJC did not stop there, however, but went on to note that even if hidden seepage could be considered a different risk than damage from surface water (as the homeowner contended), the damage was at least in part from surface water and the policy had an ACC clause.  The SJC stated, citing a long line of first-party property cases from Massachusetts and other states, that ACC clauses will be enforced according to their plain language.

Anne Robbins
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Anne Robbins


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