valve contributed to the loss,
and the failed valve and the
hydrostatic pressure contributed concurrently to the loss.
The covered event here did
not lead to a separate or different loss. Indeed, without
a separate loss, the Bozeks’
interpretation of the anticoncurrent causation clause
would lead to an untenable
result. The failed pressure
valve did not cause any loss
until it converged with the
excluded event. Put another
way, said the court, prior to
the excluded event, there
was no loss for which coverage could conceivably vest.
Neither the uplifted pool nor
the damaged concrete occurred until the hydrostatic
pressure acted upon the sides
of the pool. The two causes contributed
concurrently to this loss and so, the anticoncurrent causation clause plainly precluded coverage.
In a similar case — Liberty Mut. Fire
Ins. Co. v. Martinez, 157 So.3d 486 (Fla.
App. 2015) — the court found that the
ensuing loss exception to the water exclusion did not a apply when a pool lifted
out of the ground during a tropical storm,
damaging the pool, its deck, a rock garden and a waterfall.
The insureds in this case emptied their
in-ground pool because it was overflowing due to tropical storm rains. The subsurface water accumulated under the
pool, exerting hydrostatic pressure on
the empty pool and lifting it out of the
ground. Liberty Mutual denied the claim
based on the exclusion for damage caused
by water below the surface exerting pressure on a swimming pool.
Unlike the previous case, there was no
faulty valve here. The pressure was the
of Pool Ownership
The yin and yang of summer are a hot, steamy day and the cool, refreshing water of a swimming pool. Floating languidly at the local swim club or at a friend’s house could cause one to desire
a pool of his own, but several insurance considerations should come
into play before installing an in-ground attractive nuisance.
Many of us first think of the liability
issues involved with pool ownership, but
pools are also subject to some complicated property losses. For example, in Bozek
v. Erie Ins. Group, 46 N.E.3d 362 (Ill. App.
2015), the insured’s pool heaved out of
The pool had been emptied to clean debris, and then three and half inches of rain
fell. Because the weight of the water in the
pool did not exceed the uplift forces of the
water pressure in the soil, the pool lifted
upward, damaging it beyond repair and
taking out the surrounding concrete slab.
The Bozeks had a Homeowners policy
with Erie Insurance Group that provided
$89,000 in coverage for damage to the
pool. However, when the Bozeks present-
ed a claim to the insurer, Erie denied cov-
erage based on the anticoncurrent cau-
sation clause in the policy. The insureds
alleged that Erie improperly denied cov-
erage. In the Bozeks’ view, the anticon-
current causation clause dictated that, be-
cause a failure of the pressure-relief valve
in this instance (a covered event), pre-
ceded the increase in hydrostatic pressure
(an excluded event), the loss was covered.
The court looked to the point in time
that the cause contributed to the loss, not
the point in time that the cause came into
existence. Here, the court did not look at
the point in time when the valve failed, it
looked at the point in time that the failed