| Q&A of the Week |
Freezing to Swimming Pool Water Lines
A Tennessee subscriber recently asked the following question:
Under the HO-3 policy, would freezing to plumbing lines run to an in ground swimming pool and damages to access the lines be covered?
The swimming pool is separate from the dwelling but is connected by a concrete patio and concrete around the in ground pool. Should the plumbing lines freeze, a portion of the pool concrete deck would have to be removed to access the plumbing lines to make necessary repairs. The customer keeps the pool running during the winter months but did shut off the pump during a recent weather event in Tennessee where the temperatures were below freezing for several days.
ANSWER: Freezing of plumbing and other systems is excluded, as is the discharge or leakage from within the system caused by freezing. Freezing, thawing, or pressure of weight of water to fences, pavements, patios, and swimming pools is also excluded. There would be no coverage, and there are no endorsements that would provide coverage either. |
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| Litigation Watch |
Meaning of Physical Abuse
The homeowners insurer for a gun owner brought an action against the shooting victim for a declaratory judgment that an intentional shooting was physical abuse and thus, excluded from coverage. This case is Miglino v. Universal Property & Casualty Insurance, 174 So.3d 479 (2015).
The insured is Stein. He lent a gun to his sister and then the sister shot Miglino. Miglino sued the sister and the insured, alleging that the sister intentionally shot him and asserting a negligent entrustment claim against Stein. The insurer initially defended Stein but the filed a declaratory judgment action seeking a declaration that it had no duty to defend or indemnify the insured because of an exclusion in the policy.
The trial court granted summary judgment to the insurer and this appeal followed.
The District Court of Appeal of Florida, Fourth District, noted that the homeowners policy excluded coverage for damages arising out of sexual molestation, corporal punishment or physical or mental abuse. Miglino claimed that the exclusion did not apply because the shooting does not fit within the definition of physical abuse. He specifically likens the definition of physical abuse to torture or actions meant to humiliate or demean. The appeals court did not agree.
The court said that Black's Law Dictionary defines physical as relating or pertaining to the body, and defines abuse as physical or mental maltreatment, often resulting in mental or physical injury. Thus, said the court, the plain meaning of physical abuse encompasses the intentional shooting of Miglino by the sister. Such an act clearly constitutes physical maltreatment and physical injury as described in the dictionary.
Miglino argued that the exclusion does not apply because there was no torture, torment, humiliation, or degradation present in the act of shooting him. The court found no definitions that include the words torture, torment, humiliate, or any other similar words that Miglino insists are part of physical abuse. Common sense and common meaning dictate otherwise.
The ruling of the trial court was affirmed.
Editor's Note: The best summary for this case comes from the court: "common sense and common meaning" dictate that shooting someone is physical abuse. The claimant offered an interesting idea that physical abuse actually means torture or torment, but even though the policy did not defined physical abuse, common sense and common meaning ruled against the claimant in this instance. |
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| Fraud of the Week |
Restaurant Arson Fraud—Connecticut
AMOUNT: $190,000
A bookie well known to police faces five or more years in prison for trying to burn down a restaurant for the insurance money. Part owner in the restaurant, he worked with three others to plan the fire, having retained the services of someone experienced in fire and fireworks. He sprayed cooking oil around the deep fryer to feed the fire and set the fire at midnight on a Sunday, unaware that anyone was in the restaurant. The man was rescued, and the insured received $190,000 from insurers; $165,000 has been seized by federal prosecutors from his bank account.
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