FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTH DIVISION [NO.
60CV-15-943] HONORABLE TIM FOX, JUDGE
& Co., PLLC, by: Tim J. Cullen, for appellants.
Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C.,
by: Stuart P. Miller and Kelly D. Marchand, for appellee.
and Sarah Ford brought suit against their homeowner's
insurance provider, Safeco Insurance Company of America, for
denying a claim the Fords allege was caused by a plumbing
leak. Safeco moved for summary judgment, and the trial court
granted it. The Fords now appeal, asserting that the trial
court erred in granting summary judgment. We reverse and
2014, the Fords noticed a low spot in their living room
floor. A foundation-repair contractor suspected a plumbing
leak. An initial plumbing inspection in May did not detect a
problem, but a second test in July concluded there was a leak
somewhere under the house. The Fords filed a claim with their
homeowner's insurance provider, Safeco, the same day the
leak was detected. Safeco denied the claim. The estimate to
repair the damage was about $75, 000.
Fords filed a complaint against Safeco alleging that the
claim was covered under their insurance policy and that
Safeco had breached the contract by denying it. Safeco moved
for summary judgment, asserting that the denial was proper
because the policy explicitly excludes loss caused by both
(1) settling of foundations or floors and (2) continuous or
repeated leakage or seepage of water that occurs over a
period of weeks, months, or years.
support its first point, Safeco included with its motion an
affidavit from an engineer who stated that, in his
professional opinion, "at the time of construction of
the Plaintiffs' home, there was inadequate compaction of
the fill material below the concrete slab foundation, "
and that "[a]s a result, the fill material has been
settling over time, which in turn caused the concrete slab
foundation to settle." As to the second point, Safeco
reasoned that the Fords noticed the damage in May but did not
make their claim until July; thus, to the extent a drain-line
leak caused or contributed to the damage, it "would have
been occurring over a period of weeks by the time Plaintiffs
submitted the Claim to Safeco."
Fords responded with deposition testimony that they contacted
Safeco as soon as they knew a leak existed and provided an
affidavit from their own expert, who attested that "the
damage to the Plaintiffs' home was caused by a mechanical
failure in the plumbing system located at the premises"
and that "[i]t is not possible to determine with any
certainty when the plumbing system failure occurred, and any
opinion as to the time of the plumbing malfunction would be
speculative at best."
one-paragraph order devoid of findings or conclusions, the
trial court granted the motion in favor of Safeco, and the
Fords now appeal. The sole issue on appeal is whether the
trial court erred in granting summary judgment.
judgment should be granted only when it is clear that there
are no genuine issues of material fact, and the party is
entitled to judgment as a matter of law. Smith v. Farm
Bureau Mut. Ins. Co. of Ark., 88 Ark.App. 22, 30-31, 194
S.W.3d 212, 218-19 (2004). Once the moving party has
established a prima facie entitlement to summary judgment,
the opposing party must meet proof with proof and demonstrate
the existence of a material issue of fact. Id. On
review, we must determine whether there are any genuine
issues of material fact. Id. All proof is viewed in
the light most favorable to the party resisting the motion,
with all doubts and inferences resolved against the moving
contends that the damages sustained by the Fords are excluded
under the policy and that summary judgement was proper. The
policy covers "accidental direct physical loss" to
the home "except as limited or excluded." A list of
those limitations and exclusions ensue. Of note, the policy
excludes loss caused "directly or indirectly" by
"continuous or repeated seepage or leakage of water or
steam, or the presence or condensation of humidity, moisture
or vapor which occurs over a period of weeks, months or
years" or "settling, cracking, shrinking, bulging,
or expansion of pavements, patios, foundations, walls,
floors, roofs, ceilings, swimming pools, hot tubs, spas or
chimneys." It also specifically excludes loss from
"water damage, " except in cases of "overflow
and escape caused by malfunction" or "obstruction .
. . of a drain or plumbing appliance."
provision of the policy may or may not apply, however, simply
cannot be ascertained at this juncture. We must first know
what caused the damage. Succinctly, the Fords argue
a plumbing malfunction caused the damage to their home, and
Safeco refutes the same. On summary judgment, the Fords
discarded the shielding cloak of formal allegations and
supported their claim with deposition testimony, an expert
affidavit, a loss report, and coverage-denial letters from
Safeco (each letter asserting a different policy exclusion in
support of the denial). Our caselaw is replete with the
proposition that causation is almost always a question of
fact for the jury and not appropriate for summary judgment.
Green v. Alpharma, Inc., 373 Ark. 378, 395, 284
S.W.3d 29, 42 (2008).
argues that it is immaterial whether a plumbing leak also
caused, or contributed to, the damages to the Fords' home
because of the broad lead-in clause ...