Ensuing Loss Clauses in Homeowners Policies: Confusing but Not Ambiguous

Recent Texas Supreme Court Decision

The Texas Supreme Court noted a majority of other jurisdictions that interpret ensuing loss clauses in a similar fashion. Decisions in a number of jurisdictions address ensuing loss clauses containing the same three intervening causes (building collapse, water damage, and glass breakage) as the Texas homeowners policy made the subject of the Fiess case:

• Souza v. Corvick, 441 F.2d 1013, 1016 (D.C. Cir. 1970)
• N.Z. Ins. v. Lenoff, 315 F.2d 95, 95 n.1 (9th Cir. 1963)
• Beach v. Middlesex Mut. Assoc., 532 A.2d 1297, 1298 n.1 (Conn. 1987)
• Phoenix Ins. v. Branch, 234 So. 2d 396, 398 (Fla. App. 1970)
• Nationwide Ins. v. Warren, 675 S.W.2d 402, 403 (Ky. App. 1984)
• Shields v. Pa. Gen. Ins., 488 So. 2d 1252, 1253 (La. App. 1986)
• Cantrell v. Farm Bur. Town & Country Ins., 876 S.W.2d 660, 662 (Mo. App. 1994)

Again, most courts refuse to interpret the ensuing loss clause to make an excluded loss reappear as a covered loss. Fiess at 752-753. See also:

• Church of the Palms-Presbyterian (U.S.A.), Inc. v. Cincinnati Ins., 404 F. Supp. 2d 1339, 1342 (M.D. Fla. 2005)
• Cooper v. American Family Mut. Ins., 184 F. Supp. 2d 960, 964 (D. Ariz. 2002)
• Schloss v. Cincinnati Ins., 54 F. Supp. 2d 1090, 1098 (M.D. Ala. 1999), aff'd, 211 F.3d 131 (11th Cir. 2000)
• Vermont Elec. Power v. Hartford Steam Boiler Inspection & Ins., 72 F. Supp. 2d 441, 445 (D. Vt. 1999)
• Banks v. Allstate Ins., 1993 WL 40113 *5 (E.D. Pa. Feb. 12, 1993) (unpublished)
• Ames Privilege Assocs. Ltd. P'ship v. Utica Mut. Ins., 742 F. Supp. 704, 708 (D. Mass. 1990)
• Murray v. State Farm, 268 Cal. Rptr. 33 (Cal. App. 1990)
• Board of Educ. of Maine Twp. v. International Ins., 684 N.E.2d 978, 984 (Ill. App. 1997)
• Myers v. State Farm, 2002 WL 1547673 *6 (Minn. App. July 16, 2002)
• Weeks v. Coop. Ins., 817 A.2d 292, 296 (N.H. 2003)
• Narob Dev. Corp. v. Insurance Co. of N. Am., 631 N.Y.S.2d 155 (N.Y. App. Div. 1995)
• Alwart v. State Farm, 508 S.E.2d 531, 533-34 (N.C. App. 1998)
• Boughan v. Nationwide Prop. & Cas., 2005 WL 126781 *3 (Ohio App. Jan. 24, 2005)
• McDonald v. State Farm, 837 P.2d 1000, 1005-06 (Wash. 1992)
• Richland Valley Prod. Inc. v. St. Paul Fire & Cas., 548 N.W.2d 127, 133 (Wis. App. 1996)

But see Phillips v. United Services Auto. Ass'n, 146 S.W.3d 629, 635-36 (Tenn. App. 2004) (holding rot, though excluded clause, was covered by ensuing-loss provision).

Other Recent Rulings

Additional recent decisions demonstrate the common interpretation of ensuring loss clauses in homeowners policies. For example, the Southern District of California recently ruled in Loughney v. Allstate Ins., 465 F. Supp. 2d 1039, 1042 (S.D. Cal. 2006), that an "ensuing loss" provision "creates coverage only if an excluded cause of loss (i.e., landslide) resulted in a secondary peril (such as a fire) that itself is covered by the policy, and this secondary peril caused a loss." The court interpreted the ensuing loss provision so that there is coverage for a peril separate and in addition to the initial excluded peril so long as the second peril is otherwise covered. Because the Loughneys' complaint did not allege any secondary peril covered by their policy that caused damage to their property, the ensuing loss provision was not applicable.

Another recent decision that demonstrates the majority interpretation is Bloom v. Western Nat'l Mut. Ins., 2006 WL 1806415, *5 (Minn. App. 2006), where the Blooms claimed coverage under their homeowners insurance policy for the costs incurred in renovating their home after discovering damage. The court considered whether damage caused by water entering a home due to defective design, faulty workmanship, or faulty materials furnished in connection with construction or remodeling is excluded from coverage under either the "errors, omissions and defects" exclusion or the "wear and tear" exclusion, or is it covered as an ensuing loss? The exclusion and ensuing loss language of the insurance policy at issue stated:

In finding that the Blooms' damages were an ensuing loss and therefore covered by the policy, the federal district court defined ensuing loss as "a loss that is not directly caused by faulty workmanship but nonetheless follows as a chance, [which is a] likely, or necessary consequence of faulty workmanship." The district trial court found the damages to be ensuing losses "because they were not directly caused by the faulty workmanship or material, but by water intrusion thereafter" as most of the Blooms' damages (undisputedly) occurred as a result of rain entering in or through the home due to various errors and omissions of the contractor.

The Minnesota Court of Appeals held otherwise, finding the ensuing loss clause does not create or provide coverage for an otherwise excluded loss. The court held both the defective construction and the rot-and-mold exclusions specifically excluded ensuing loss coverage because the rot and mold is inseparable from any resulting damage otherwise excluded under the policy. The rot and mold are not ensuing losses, and therefore, not covered. The court further noted that mold and rot are not separate and distinct perils. The mold resulted from water that entered into the home through the faulty installation and workmanship of the contractor. The court determined that for mold and rot to cause injury, water or moisture must be present, and without the faulty installation and workmanship, as indicated by the expert investigation, the water and moisture should not have entered the Blooms' home to produce mold and rot. The court reasoned:

Id.

See also:

• Atlantic Mut. Ins. v. Lotz, 384 F. Supp. 2d 1292, 1305 (E.D. Wis. 2005) (explaining where evidence shows shower leaked because it was defectively constructed, and development of mold and rot in the sub-floor was a "likely" or "necessary consequence" of the defects, mold and rot were ensuing losses caused by the defective construction, and excluded under the defective construction exclusion because the direct cause for the damage to the sub-floor, i.e., mold and rot, is excluded)
• Morgan v. Auto Club Family Ins., 899 So. 2d 135, 136-137 (La. App. 2005) (holding loss of property caused by mold is specifically excluded from coverage under the homeowners policy even though the mold damage may have resulted from lack of ventilation in the attic because accumulation of condensation is not a peril insured under the policy)
• Wright v. Safeco Ins. Co. of Am., 109 P.3d 1, 7 (Wash. App. 2004) (explaining "under the ensuing loss exception to the defective construction exclusion, where defective construction causes water damage that in turn causes mold, the mold damage is covered if it is not specifically excluded by some other provision in the policy")
• Arnold v. Cincinnati Ins., 688 N.W.2d 708 (Wis. 2004) ("a reasonable insured would understand that, in addition to being a loss that follows as a chance, likely, or necessary consequence of the excluded loss, an ensuing loss must result from a cause in addition to the excluded cause")

Conclusion

Recent decisions make clear that ensuing loss clauses do not broaden or create coverage, but instead operate to render coverage for damages that are directly caused by covered perils where the covered peril may have been directly caused by an excluded peril. The majority of courts interpret the ensuing loss clause in the homeowners policy to support this application, though the language of each clause may vary.

Dana Harbin is an attorney in the Dallas office of Cooper & Scully, P.C. where she specializes in insurance coverage and bad faith involving all types of insurance policies, both first and third party. Ms. Harbin earned her BA degree from the University of Texas in Arlington and her JD degree from the University of Texas at Austin. She can be reached at