The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff Ronald Billitier, Jr. ("Billitier") brings this action against Merrimack Mutual Fire Insurance Company ("Merrimack"), seeking coverage for water damage pursuant to a property insurance policy he purchased from Merrimack. Merrimack now moves for summary judgment dismissing the complaint, on the grounds that its denial of coverage to Billitier for the underlying damages was justified by an applicable policy exclusion. (Dkt. #19). For the reasons discussed below, the motion is denied.
FACTUAL AND PROCEDURAL BACKGROUND
At some point prior to January 24, 2008, Billitier purchased an insurance policy (the "Policy") from Merrimack to cover potential losses to a residential dwelling (the "Property") owned and maintained by Billitier as rental property.
The Policy provided, in relevant part:
We insure against risk of direct loss to property . . . however, we do not insure loss [that is] caused by:
a. freezing of a plumbing, heating air conditioning or automatic fire protective sprinkler system or of a household appliance, or by discharge, leakage or overflow from within the system or appliance caused by freezing. This exclusion applies only while the dwelling is vacant, unoccupied or being constructed unless you have used reasonable care to:
(1) maintain heat in the building; or
(2) shut off the water supply and drain the system and appliances of water . . .
Dkt. #19-4, Exh. A at p. 4 (emphasis added).
Subsequently, between December 2007 and January 24, 2008, water pipes in the Property froze, burst, and caused damage alleged by Billitier to total $100,084.98. Billitier timely made a claim under the Policy for the damage, which Merrimack denied on the grounds of the exclusion for frozen pipes in an unoccupied, unheated property with undrained plumbing.
On September 18, 2008, Billitier commenced the instant action in state court (later removed to Federal Court), requesting damages in the amount of $100,084.98, together with interest, costs, disbursements and attorneys fees. (Dkt. #1). Billitier claims that Merrimack breached the terms of the Policy and inappropriately relied on the exclusion, because Billitier had used reasonable care to heat the Property.