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LLC v. Liberty Mutual Fire Insurance Co.

United States District Court, N.D. New York

January 6, 2020

301-375 WEST ONONDAGA STREET, LLC, Plaintiff,

          LYNN LAW FIRM, LLP Attorneys for Plaintiff


          MURA & STORM, PLLC Attorneys for Defendants

          SCOTT D. STORM, ESQ.



         This case involves an insurance coverage dispute regarding an incident at 301-375 West Onondaga Street, LLC's (“Plaintiff”) property that allegedly took place on July 13, 2017. Currently before the Court is Liberty Mutual Fire Insurance Company, Liberty Mutual Company, and Ohio Security Insurance Company's (collectively “Defendants”) motion for summary judgment (Dkt. No. 20), and Plaintiff's cross-motion for summary judgment (Dkt. No. 27). For the reasons that follow, Defendants' motion for summary judgment is granted, Plaintiff's cross-motion for summary judgment is denied, and the Court orders the clerk to enter judgment in favor of Defendants and to close this case.


         Summary judgment is appropriate only where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Alexander & Alexander Servs., Inc. v. These Certain Underwriters at Lloyd's, London, 136 F.3d 82, 86 (2d Cir. 1998).


         Defendants[1] issued a commercial property policy of insurance (Dkt. No. 20-6, the “Policy”) to Plaintiff for the period between May 25, 2017, and May 25, 2018. (Defendants' Statement of Material Facts, Dkt. No. 20-9 at ¶ 1.[2]) Plaintiff submitted a property loss notice to Defendants on July 13, 2017, regarding a water loss event it had suffered that same day. (Id. at ¶ 2.) On July 14, 2017, Defendants' property claims specialist inspected the premises with Plaintiff's principal and its public adjuster. (Id. at ¶ 3.)

         On July 19, 2017, Defendants issued a reservation of rights letter to Plaintiff. (Id. at ¶ 7.) Defendants thereafter hired Adam D. Cabral, P.E. (“Cabral”) to assist in determining the cause of the loss. (Id. at ¶ 8.) Cabral inspected the premises on August 17, 2017, and issued a report to Defendants on August 24, 2017. (Id. at ¶ 9 (citing Dkt. No. 20-4).) Based on Cabral's report and its own investigation, Defendants issued a partial coverage denial letter to Plaintiff dated August 30, 2017. (Dkt. No. 20-9 at ¶ 16 (citing Dkt. No. 20-7 at 9-12).) Defendants determined that coverage for the loss was limited to $25, 000.00 pursuant to the BP 35 09 11 endorsement of the Policy. (Dkt. No. 20-9 at ¶ 17; see also Plaintiff's Statement of Material Facts, Dkt. No. 28 at ¶¶ 40, 41.) Plaintiff thereafter retained Glen L. LeComte, Jr. P.E. (“LeComte”) to provide a report regarding the loss. (Dkt. No. 20-9 at ¶ 18 (citing Dkt. No. 20-2 at 31-34).)


         A. Factual Basis for the Loss

         Advocacy aside, the parties do not dispute the material details of the incident giving rise to this action. To that end, both experts agree water pooled on the roof and went through a roof drain into a pipe that was clogged at an elbow joint and water subsequently exited through the fitting between the elbow joint and the plastic pipe entering it.[3] Below are excerpts of statements from each parties' respective expert regarding the cause of the loss:

The subject water intrusion event was the result of the clogged cast-iron roof drain piping backing up, resulting in water seeping out of the improperly connected joints between the original cast-iron piping and the newer plastic piping at the roof drains.

(Dkt. No. 20-4 at 7 (Defendants' expert).)

It is my opinion that the piping failed at the joint where the plastic piping meets the cast-iron piping and caused water to enter the building. If a clog had simply stopped drainage, the water would have backed up onto the roof and moved through other roof drains, ponded or found another infiltration point. A pipe joint failure is the likely cause of this water inundation.
It is my opinion that the most likely cause of this water inundation is that water could not drain through the cast-iron joint and the pipe failed where the plastic piping meets the cast iron joint. This is also supported by the video depicting water entry in that location.

(Dkt. No. 20-2 at 33 (Plaintiffs expert).)

         In his report, Cabral provided photos of the loss which further support the two complementary opinions. To that end, below is a photo of the clogged cast iron pipe:

         (Image Omitted)

         (Dkt. No. 20-4 at 14 (cropped and border added).) And, below is a photo showing "a plastic pipe . . . loosely inserted with sealant into the top of the original cast iron pipe" showing "[a] gap between the outside of the plastic pipe and the inside of the cast-iron pipe."

         (Image Omitted)

         (Id. at 15 (cropped and border added).)

         The Court thus concludes the material facts of this case are undisputed relative to the event that caused the water intrusion at issue. Specifically, the Court finds the following:

1. Plaintiff had a roof drainage system that collected water into pipes that ran through the interior of Plaintiff's building;
2. At the relevant location, one pipe in the roof drain system that ran from the roof was made of plastic and connected to a cast-iron pipe at an elbow joint;
3. Over time, the elbow joint accumulated debris such that the flow of water was slowed;
4. On July 13, 2017, [4] the drain system clogged at the elbow joint resulting in the water having no means to egress through the pipe;[5]
5. A significant amount of water escaped the pipe system through the connection between the plastic pipe and the cast iron elbow joint.

         Given these facts, the Court will now turn to whether Defendants properly provided only partial coverage for the loss described above as provided for in the Policy.

         B. Pertinent Policy Provisions ...

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