The courts in several jurisdictions have carved out scenarios where such
damage may not fall within the surface water exclusion, such as incidents where
the origin of the water was not natural or the flow of the water was channeled
by another structure on the ground.
There are a number of courts that have held that the "surface water" exclusion
does not apply to damages caused by water that is interrupted or channeled by
man-made structures or water that is not of a natural origin. For example, the
Colorado Supreme Court held in Heller v. Fire Ins. Exch.,
800 P.2d 1006 (Colo. 1990), that spring runoff of melting snow diverted from
regular path onto the Hellers' property by three parallel trenches constructed
behind property was not "surface water" because trenches were "defined channels."
The court held that surface water follows no defined course or channel.
In Cochran v. Travelers Ins. Co., 606 So.
2d 22 (La. App. 1992), the Louisiana appellate court held that rainwater that
overflowed and seeped from the roof into the interior of the building was not
"surface water" because it was not water that collected and lay on the ground.
In Ebbing v. State Farm Fire & Cas. Co., 1 S.W.3d
459 (Ark. App. 1999), the Arkansas appellate court held that water from burst
water main was not "surface water" because it did not accumulate from natural
causes. Finally, in Aetna Fire Underwriters Ins. Co.
v. Crawley, 207 S.E.2d 666, 668 (Ga. App. 1974), the Georgia appellate
court interpreted "surface water" strictly to water on surface of ground and
not to rainwater falling on and flowing from the roof of an insured dwelling.
The majority of courts interpret the surface water exclusion broadly to apply
to damages caused by water that ran onto some man-made object, instead of directly
onto the earth. For example, Texas courts recognize that the surface water exclusion
applies to damages caused by water that runs over various items or the flow
is altered by items built on top of the ground. In Crocker
v. American Nat'l Gen. Ins. Co., 211 S.W.3d 928 (Tex. App. 2007), the
court of appeals affirmed a summary judgment in favor of American National General
Insurance Company (ANGIC), holding that the surface water exclusion in the homeowners
policy issued to the Crockers barred their claim for damage to their home. The
Crockers' homeowners policy provided that:
We insure against all risks of physical loss to the property … unless the
loss is excluded in Section I Exclusions.
Section I provided:
We do not cover loss caused by or resulting from flood, surface water, waves,
tidal water or tidal waves, overflow of streams or other bodies of water
or spray from any of these whether or not driven by wind.
The court noted that the term "surface water" was not defined by the policy
and referred to other Texas cases that have defined "surface water" in the insurance
context as follows:
Surface water is defined as water or natural precipitation diffused over surface
of the ground until it either evaporates, is absorbed by the land, or reaches
channels where water naturally flows. [Citations omitted.] "Flood water"
and "surface water," therefore, have a terranean nature, i.e., water overflowing
its natural banks or which does not form a well-defined body of water—as
opposed to water below the surface, whether from a nature or unnatural source.1
In the Crocker case, the water entered the
house "from a raised patio." The parties agreed the resurfacing of the patio
caused rainwater to drain into the house instead of into the flower beds as
planned. The Crockers argued that because the rain hit the patio instead of
the dirt, and the top of the patio was 8 to 10 inches or a foot from the soil,
it was not water on the surface of the ground. ANGIC argued it would:
be a strained interpretation of 'surface water' to hold that it does not include
rainwater that falls upon concrete and asphalt structures such as patios,
roads, driveways, playground blacktops and parking lots—structures which
are by their nature placed upon the surface of the ground.
Id. The court agreed and held that the
ordinary meaning of the words "surface water" reasonably can include rainwater
that has collected on the surface of their patio relying on several other Texas
cases on point.2
The Illinois court in Smith v. Union Auto. Indem.
Co., 752 N.E.2d 1261, 1266 (Ill. App. 2001), appeal denied, 763 N.E.2d 778 (Ill. 2001),
discussed whether water could be "surface water" when its flow had been altered
by man-made structures. In Smith, during
a torrential rainstorm, the window wells in the basement of the Smiths' home
filled with water, causing the windows to break and the basement to fill with
5 feet of water. Water also came into the basement through the sewer drain.
The court held that the average reasonable person would not limit surface water
to water whose flow has not been altered in any way by paved surfaces, buildings,
or other structures. Id. at 1267. Therefore,
the court held the water entering the Smiths' home as a result of a torrential
rainstorm was surface water excluded by their homeowner's insurance policy.3
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