In Liberty Mutual Fire Ins. Co. v. Martinez, 2015 Fla. App. LEXIS 1918, Liberty Mutual appeals a final summary judgment entered in favor of its insureds, Nigel and Melissa Martinez. Liberty issued an all-risk insurance policy to the Martinezes insuring their residence and other structures located on their property. During a tropical storm, Nigel Martinez partially emptied his family’s in-ground swimming pool because it was overflowing. The following day, he discovered that the pool had lifted out of the ground. As would be later agreed upon by experts, subsurface water accumulated underneath the pool during the storm, which exerted hydrostatic pressure on the partially emptied pool. This pressure caused the pool shell to lift out of the ground, damaging the shell as well as the pool deck, rock garden, and waterfall. Thereafter, the Martinezes filed a claim with Liberty, which was denied on the ground that the Water Exclusion provision in the policy excluded damage caused by hydrostatic pressure from coverage. That provision provides:
We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss.
(C.) Water Damage
(1) Flood, surface water, waves, tidal water, overflow of a body of water, or spray from any of these, whether or not driven by wind;
(3) Water below the surface of the ground, including water, which exerts pressure on or seeps or leaks through a building, sidewalk, driveway, foundation, swimming pool or other structure.
In response, the Martinezes filed suit for breach of contract and argued, that their damage was covered under the ensuing-loss provision in the policy. That provision provides:
2. We do not insure for loss to property described in Coverages A and B caused by any of the following. However, any ensuing loss to property described in Coverages A and B not excluded or excepted in this policy is covered.
a. Weather conditions. However, this exclusion only applies if weather conditions contribute in any way with a cause or event excluded in paragraph 1. above to produce the loss;
Both sides moved for summary judgment. The trial court found that the direct cause of the Martinezes’ damage was the pool shell coming out of the ground, rather than the hydrostatic pressure. Accordingly, the court found that the damages were ensuing losses covered by the policy, denying Liberty’s motion for summary judgment, and granting the Martinezes’ motion for summary judgment.
Liberty Mutual appealed to the Fifth District Court of Appeal of Florida. The issue on appeal was whether the Water Exclusion provision excludes the Martinezes’ losses from coverage. The Court agreed with Liberty that under the policy’s plain language, the damage to the Martinezes’ pool deck, rock garden, and waterfall was not an ensuing loss. Rather, the policy expressly excluded the Martinezes’ loss as it specifically excluded losses that occurred directly or indirectly from subsurface water pressure. In the Court’s view, the damage to the deck, rock garden, and waterfall resulted, directly or indirectly, from subsurface water pressure. Accordingly, the court need not look to the ensuing-loss provision. Therefore, the Court held the insurance policy excluded the loss and reversed the summary final judgment and remand the case for entry of judgment in favor of Liberty.