For his part, Hicks filed his own motion for summary judgment, on three issues:

• He had sustained a physical loss during the policy period;
• All losses occurring within the first 13 days were covered; and
• He was entitled to $40,926.77 for losses occurring within the first 13 days of the leak.

Hicks attached to his motion an extensive report from a forensic general contractor that attempted to calculate the amount of damage to the home within the first 13 days of the leak.

At a hearing on the motions, the trial court told Hicks, “Basically, you're asking [this court] to say whether the policy covered the loss in the first 13 days. … It might, but I'm not so sure that the time frame of these particular facts would allow for that determination.”

The trial court then granted summary judgment in American Integrity's favor.

Hicks appealed, contending that the exclusion applied only to losses “caused by water on day 14 and onward.”

Related: Court rules on meaning of homeowner's water 'leakage' insurance exclusion

The appellate court's decision

The appellate court reversed, holding that an insurance policy excluding losses caused by constant or repeated leakage or seepage over a period of 14 days or more did “not unambiguously exclude losses caused by leakage or seepage over a period of [13] days or less.”

In its decision, the appellate court explained that it was “not unambiguously clear” that a provision excluding losses caused by constant leakage of water over a period of 14 or more days likewise excluded losses caused by constant leakage of water over a period of 13 days or less. Ambiguous insurance provisions, the appellate court observed, “must be construed against the insurer and in favor of coverage.”

The appellate court added that the trial court's express reasoning for granting summary judgment in American Integrity's favor — that the policy “might” cover “the loss in the first 13 days,” but that the trial court was nevertheless “not so sure that the time frame of these particular facts would allow for that determination” — “was flawed.”

For an all-risks policy such as the one issued by American Integrity to Hicks, the appellate court reasoned, after the insured established a loss within the terms of a policy, the burden shifted to the insurer to prove that a particular loss arose from an excluded cause. Whether such a determination was possible was a genuine issue of material fact precluding summary judgment, the appellate court said.

The appellate court then ordered the trial court to enter partial summary judgment in Hicks' favor on the sole issue of coverage within the first 13 days of the leak, with the extent of the losses to be determined at trial. As for losses occurring after the first 13 days, the appellate court concluded, the burden would be on American Integrity to prove that a particular loss was sustained after the 13th day and therefore was not covered under the language of the exclusion provision.

The case is Hicks v. American Integrity Ins. Co.

Related: Help clients protect their homes during the summer travel season

FC&S Legal Comment

Other courts have reached similar results in cases involving substantially similar exclusions.

For example, in Wheeler v. Allstate Insurance [687 F. App'x 757, 759 (10th Cir. 2017)], a leak in the insured's seasonal cabin went undiscovered for several months, by which point the basement had been flooded with five inches of water. At trial, the insured argued that he was entitled to coverage for the first week of damage caused by the leak. The U.S. Court of Appeals for the Tenth Circuit reversed the district court's grant of summary judgment in the insurer's favor, finding that the “claimed damage was not caused by leakage over a period of 14 days or longer; it was caused by leakage over a period of less than 14 days.”

Similarly, in another case, Coutts v. Florida Peninsula Insurance [23 Fla. L. Weekly Supp. 1012b (Fla. 11th Cir. Ct. Mar. 4, 2016)], the plaintiff sued her insurance company after it denied her claim. The appellate court held, “[I]f the 'loss' was realized between days 1 and 13 it is not excluded, even though the 'condition' may have remained on the property for 14 days or longer. Thus, the stipulation that the home was exposed to water for 14 or more days proved just that — and nothing more.”

Moral of the story? If you're going to be away from home for an extended period of time, consider having someone check on your property regularly.

Related: 6 tips for protecting vacation rental homes

Steven A. Meyerowitz, Esq., is the director of FC&S Legal, the editor-in-chief of the Insurance Coverage Law Report, and the founder and president of Meyerowitz Communications Inc. Email him at [email protected].