Tred Eyerly | Insurance Law Hawaii | September 18, 2017
The insurer failed to present adequate evidence on summary judgment that damage caused by the collapse of a swimming pool was not covered. Klein v. State Farm Ins. Co., 2017 N.Y. Misc. LEXIS 3030 (Sup. Ct. N.Y. July 11, 2017).
Klein notified State Farm that his in-ground pool collapsed on February 5, 2014, with a side wall falling into the pool, causing damage to brick, borders and the patio around the pool. Upon inspection, State Farm’s agent found that the cover of the pool had partially fallen into the pool, and that the vinyl pool liner had a tear. State Farm covered the damage to the pool liner, but denied coverage for the in-ground swimming pool walls, the brick border and the patio surrounding the pool. State Farm maintained that the loss was due to a “collapse,” which was excluded under the homeowner’s policy.
The policy covered “the direct physical loss to covered property involving the sudden entire collapse of a building or any part of a building” caused by listed perils. The policy contained exclusions for wear and tear, faulty construction, earth movement and water damage.
Klein informed State Farm that the damage was caused by an arrow shot into his pool by an unknown deer hunter, which damaged the pool liner and then led to the pool collapse. Klein later found a piece of an arrow at the bottom of the pool. State Farm denied coverage, asserting that the swimming pool was not a “building” and that the collapse was not covered, even if caused by an arrow piercing the pool liner. Further, State Farm relied upon exclusions in the policy.
The court denied State Farm’s motion for summary judgment because its engineering report was not in an admissible form. Therefore, State Farm had not established from the language of the policy a prima facie case that damage to the pool walls, brick border and patio area was caused by wear, tear and the deterioration of the pool liner. State Farm also failed to establish that damage was caused by earth movement.