IN THE CIRCUIT COURT OF LAFAYETTE COUNTY, MISSOURI AT LEXINGTON
JOSEPH and JAMIE WIMBERLY 14373 Wheatley Road
Mayview, Missouri 64071-7139
Plaintiffs,
vs.
FARM BUREAU TOWN & COUNTRY INSURANCE COMPANY OF MISSOURI 701 S. Country Club Dr.
Jefferson City, Missouri 65102
Defendant.
Case No. 04LF-CV00820
PETITION
COUNT I - BREACH OF CONTRACT
COME NOW Plaintiffs, Joseph and Jamie Wimberly, and for their cause of action against Defendant, allege and state as follows:
1. Plaintiffs are now and at all times relevant hereto were individuals residing in Mayview, Lafayette County, Missouri.
2. Defendant, Missouri Farm Bureau Insurance Company, is an insurance company
organized and existing under the laws of the State of Missouri, having their primary office in Jefferson City, Missouri.
3. Prior to February 3,2004, Plaintiffs purchased a homeowners insurance policy from
Defendant. Said contract of insurance was in full force and effect on February 3, 2004, and was entered into in Lafayette County, Missouri.
4. Said policy provided coverage for Plaintiffs' dwelling, including losses caused by accidental discharge or overflow of water or steam from within a plumbing system.
5. Pursuant to page 9, paragraph 13 of said insurance policy, said coverage applied unless the damage was "caused by an obvious and visible, constant or repeated leakage over a period of weeks, months, or years."
6. On or about February 3,2004, Plaintiffs discovered serious and significant damage to their dwelling which was caused by a leak in a water pipe which is part of the plumbing system of their home
7. The above referenced damage was not obvious and visible over a period of weeks, months or years.
8. Plaintiffs submitted a claim to Defendant in a timely manner requesting coverage for said damage.
9. Defendant has breached its contract by refusing to provide coverage for Plaintiffs' loss.
10. As a direct and proximate result of Defendant's breach of contract, Plaintiffs have been damaged in one or more following ways:
A. They have incurred expenses for repairing the damage to their house in the amount of $10,870.00;
B. They have lost the use of their home for approximately four months;
C. They have incurred additional rental charges to rent alternate living space in the amount of $2200.00;
D. They have incurred attorney fees and other related expenses in pursuit of their insurance coverage.
WHEREFORE, Plaintiffs pray the Court for judgment against Defendant in the amount of $13,070.00, along with their costs incurred herein, including reasonable attorney fees, and for such other and further relief as the Court deems just and proper.
COUNT II- VEXATIous REFUSAL
11. Paragraphs 1 through 10 are incorporated herein by reference.
12. Prior to obtaining counsel, Plaintiffs made demands for coverage which were repeatedly rejected.
13. On August 9,2004, by and through their attorney, Plaintiffs made written demand upon Defendant fro coverage.
14. Defendant has persisted in its refusal to provide coverage for a period in excess of thirty (30) days following the demand.
15. Defendant's refusal is vexatious and without reasonable cause.
16. Pursuant to Mo. Rev. Stat. § 375.296, Plaintiff is entitled to additional damages for its vexatious refusal, including reasonable attorney fees.
WHEREFORE, in addition to the damages prayed for in Count I, Plaintiffs pray the Court for additional damages, including their costs and reasonable attorney fees, for Defendant's vexatious refusal to pay under the terms of this coverage.
BARTON, HALL & SCHNIEDERS, P.C.
Robert H. Schnieders #40668
1117 S. Broadway
P.O. Box 110
Oak Grove, Missouri 64075 Telephone: (816) 690-4111 Facsimile: (816) 625-7204
ANSWER OF DEFENDANT FARM BUREAU TOWN & COUNTRY INSURANCE COMPANY OF MISSOURI TO PLAINTIFFS' PETITION
JOSEPH AND JAMIE WIMBERLY
Plaintiffs,
vs.
FARM BUREAU TOWN & COUNTRY INSURANCE COMPANY OF MISSOURI
Defendant.
Case No. 04LF - CV00820
COUNT I - BREACH OF CONTRACT
1. Defendant is without sufficient information to admit or deny the allegations contained in paragraph 1 of Plaintiffs' Petition and therefore denies same.
2. Admit.
3. Defendant admits that it issued a policy of insurance to Plaintiffs having policy number PRO 0228081 06, and a policy period of November 18, 2003 through November 18,
2004. Said policy speaks for itself and Defendant denies each and every remaining allegation contained in paragraph 3 of Plaintiffs' Petition.
4. Defendant admits that it issued a policy of insurance to Plaintiffs having policy number PRO 0228081 06, and a policy period of November 18, 2003 through November 18,
2004. Said policy speaks for itself and Defendant denies each and every remaining allegation contained in paragraph 4 of Plaintiffs' Petition.
5. Defendant admits that it issued a policy of insurance to Plaintiffs having policy number PRO 0228081 06, and a policy period of November 18, 2003 through November 18, 2004. Said policy speaks for itself and Defendant denies each and every remaining allegation contained in paragraph 5 of Plaintiffs' Petition.
6. Defendant is without sufficient information to admit or deny the allegations contained in paragraph 6 of Plaintiffs' Petition and therefore denies same.
7. Defendant is without sufficient information to admit or deny the allegations contained in paragraph 7 of Plaintiffs' Petition and therefore denies same.
8. Defendant is without sufficient information to admit or deny the allegations contained in paragraph 8 of Plaintiffs' Petition and therefore denies same.
9. Denied.
10. Defendant denies each and every subpart of paragraph 10.
COUNT II - VEXATIOUS REFUSAL
11. Defendant restates and incorporates by reference herein each of its answers to the allegations contained in Count I of Plaintiffs' Petition.
14. Denied.
15. Admit.
16. Admit.
17. Denied.
18. Denied.
AFFIRMATIVE DEFENSES
A. For further answer and for its first affirmative defense, Defendant states that Plaintiffs' Petition fails to state a claim upon which relief can be granted.
B. For further answer and for its second affirmative defense, Defendant states there is no coverage and Plaintiffs are barred from recovery under the policy because the claimed loss and damages were caused by water below the surface of the ground. Coverage for loss and/or
damage caused by water below the surface of the ground is specifically excluded pursuant to the express terms of the subject policy, and, as such, Plaintiffs are not entitled to any coverage under the policy for the claimed loss and damages.
WHEREFORE, having answered Plaintiffs' Petition, defendant prays to be dismissed with prejudice, for its costs herein expended, and for such other and further relief as this Court deems just and proper under the circumstances.
Robert L. Brady
Patrick T. McCullough BROWN & JAMES, P.C. Attorneys for Defendant Missouri Farm Bureau Town & Country Insurance Company 314-421-3400 314-421-3128 - FAX
A copy of the foregoing mailed this __ day of ., 2004, to:
Mr. Robert H. Schnieders, Attorney for Plaintiff, 1117 S. Broadway, P. O. Box 110, Oak Grove, MO 64075
IN THE CIRCUIT COURT OF LAFAYETTE COUNTY, MISSOURI AT LEXINGTON
JOSEPH AND JAMIE WIMBERLY Plaintiffs
v.
FARM BUREAU TOWN & COUNTRY INSURANCE COMPANY OF MISSOURI Defendant.
PLAINTIFF'S TRIAL BRIEF
Case No: 04LF-CV00820
This case involves a question of insurance coverage. Joseph and Jamie Wimberly
purchased a homeowners insurance policy from Farm Bureau, which was in effect from
November 18,2003 through November 18,2004. During this period of coverage, Wimberly's
sustained severe damage to their residence as a result of a leak in a copper water line. The
Wimberly's reported the loss to Farm Bureau, who denied coverage based on an exclusion in the
policy. The Wimberly's have filed a two count petition. Count I seeks damages for breach of
contract for failing to cover the insured loss. Count II seeks additional damages for Farm
Bureau's vexatious refusal of the claim.
Regarding the liability portion of this claim, there is essentially no dispute of material
fact. The issue for the Court to decide is the legal issue of whether or not the Farm Bureau policy
language provides coverage for the damage sustained by Mr. and Mrs. Wimberly. In interpreting
an insurance policy, the Court is to give the policy a reasonable construction and interpret the
policy so as to afford rather than defeat coverage. Policy provisions which are designed to
restrict, limit or impose exceptions or exemptions on insurance coverage must be strictly
construed against the insurer. Jam, Inc v. Nautilus Insurance Company, 128 SW 3d 879,893
(MoApp W.D. 2004). "Where reasonably possible, an insurance policy will be interpreted as affording coverage." King Construction v. Continental Western Insurance Company, 123 SW 3d 259,264 (MoApp W.D. 2003). It is incumbent upon an insurer to express its exclusions in clear and unambiguous terms. It is these clauses, which attempt to restrict coverage, that are construed most strongly against the insurer and to the favor of the insured. Jones v. Columbia Mutual Insurance Company, 700 SW 2d 187 (MoApp S.D. 1985).
The Wimberly house is an earth contact home which rests upon a slab foundation. The water lines, which supply water from the outside source to and throughout the house, run underneath the concrete slab. At some point in or about February, 2004, one of the copper water lines running underneath the slab floor developed a leak between the master bathroom and the hallway bathroom of the home. The water that leaked from the water line eventually migrated through the concrete slab floor and caused significant damage including destruction of the laminate floor and saturation of the carpet. In order to repair the leak, it was necessary to chisel out a large section of the concrete slab floor, replace the compromised water line, and the re-pour the floor. The repair necessitated the replacement of a shower and a large section of flooring.
Farm Bureau has denied coverage solely upon an exclusion to the policy which excludes loss or damage from "water damage, meaning: ... c. Regardless of its source, water below the surface of the ground. This includes water which exerts pressure on or flows, seeps, or leaks through any part of a dwelling or other structure, sidewalk, driveway, or swimming pool." (Hereinafter referred to as exclusion number 8). It is Farm Bureau's contention, that the water which leaked from the water pipe, was water "below the surface of the ground", triggering the exclusion.
The Farm Bureau policy includes coverage under level two protection, for;
"accidental discharge or overflow of water or steam from within a plumbing, heating, air conditioning, or automatic fire protection sprinkler system, or from within a household appliance. We also pay for tearing out and replacing any part of the dwelling or other structure on the insured premises necessary to repair the system or appliance from which the water or steam escaped."
This protection goes on to provide that;
"this peril does not include loss: A. to a dwelling or other structure caused by an obvious invisible, constant or repeated leakage over a period of weeks, months, or years .... E. On the insured premises caused by accidental discharge or overflow which occurs of the insured premises."
In addition to exclusion 8, the general exclusions portion of the policy includes exclusion three which excludes loss or damage caused by;
"continuous or repeated seepage or leakage of water or steam, which is obvious and or visible, from within a plumbing, heating or air conditioning system or from within a household appliance which occurs over a period of weeks, months, or years."
There is no contention by Farm Bureau that the seepage or leakage of water from the
water pipe was obvious and or visible over a period of weeks, months, or years so as to trigger
exclusion three or refute the coverage language under level two protection. The sole reason for
denial is the language of exclusion 8.
The copper water line, which developed a leak, is clearly part of the homes "plumbing
system" as addressed in the policy language. A plumbing system includes water supply and
distribution pipes, including public water mains. Labors District Council v. St. Louis, 5 SW 3d
600, 603 (MoApp E.d. 1999). Additionally, the policies own discussion of a loss from a
plumbing system" on the insured premises caused by accidental discharge or overflow which
occurs off the insured premises" necessitates the inclusion of the water supply lines within the
definition of a "plumbing system". Plaintiffs council cannot envision a situation where a
plumbing system could overflow in a location off of the insured premises other than from a leak
in the water supply line that runs off of the premises to the water main. In this case, the leak occurred within the plumbing system on the premises.
The non-obvious leak in the water supply line is clearly a covered loss from accidental discharge or overflow of water from within a plumbing system. The fact that the plumbing system at issue lies underneath the concrete slab floor of this earth contact home, does not counter this coverage and trigger exclusion number 8. The language of exclusion number 8 would indicate that it is intended to apply to external ground water. Exclusion number three applies to a leak in a plumbing system. The contradiction of the language of these two exclusions, when read in context with the level two protection, creates an ambiguity which must be interpreted against Farm Bureau and in favor of coverage.
A similar factual scenario was presented in the Jones Case, 700 Sw 2d 187. Jones purchased a homeowners policy which included a water damage exclusion with language essentially identical to Farm Bureau's exclusion number 8. The water pipes in Jones' house froze and broke, causing water to discharge into the house. In addition, water from the broken pipes ran under the foundation and under the carport of the house and caused additional damage. The insurer admitted that the damage caused directly from the leaking water was covered but denied the claim for damage done by the water which had ran under the foundation because it had become water below the surface of the ground.
The Court recognized that it "must reconcile conflicting clauses in an insurance policy so far as their language reasonably permits, but when reconciliation fails, inconsistent provisions will be construed most favorably to the insured." Id at 188. Recognizing that no Missouri case was helpful in deciding the matter, the Court look to numerous cases from other jurisdictions, the majority of which had decided the issue in favor of coverage. Presented with a policy which
clearly provided coverage for damage from frozen pipes, but excluded damage from water below the surface of the ground, the Court stated; " Weare confronted not with an ambiguity in the ordinary sense, but with provisions in the same policy which are difficult to reconcile." Id. The Court determined that the only reasonable way to reconcile the conflicting policy provisions was to "find that they mean that any water damage directly resulting from such freezing is covered, and that [the exclusion] applies only to damage resulting from natural water, or perhaps other sources. This reasoning appears to be in line with the cases allowing recovery [from other jurisdictions]. The result is also consistent with construing the policy in favor of the insured." Id at 189.
As in the Jones case, Mr. and Mrs. Wimberly purchased a policy which clearly provides coverage for water damage due to a leak in a water pipe which is part of the plumbing system. The only reasonable way to reconcile this coverage with the language of exclusion number 8 is to find that damage caused by a leak in the plumbing system is covered and that exclusion 8 applies to damage resulting from natural water or other sources. There is no dispute that if the Wimberly home had a basement, and a water line running below the kitchen floor between two bathrooms developed a leak, the damage would have been covered. It is illogical and unjust to find no coverage simply because the Wimberly's house is earth contact and the water line is below the slab floor. A reasonable person purchasing this policy would expect exclusion 8 to apply to external underground water, not to a broken water pipe. Based upon the policy language, Plaintiff s should be awarded judgment for the entire amount of their damages, exclusion number 8 not withstanding.
DAMAGE TO REPAIR
Alternatively, even if the Court should decide that the language of exclusion 8 excludes
Plaintiffs' claim for water damage, the majority of Plaintiffs' damages are still recoverable. The
level two protection provides coverage for accidental discharge or overflow from within a
plumbing system. This language specifically provides; "We also pay for tearing out and replacing
any part of the dwelling or other structure of the insured premises necessary to repair the system
or appliance from which the water or steam escaped." Even if the Wimberlys are not entitled to
recover the items that were damaged by the water, they are entitled to recover the costs of tearing
out and replacing the concrete slab floor and the other items that were forced to be removed as a
result of the leak.
BARTON, HALL & SCHNIEDERS, P.C.
Robert H. Schnieders #40668
1117 S. Broadway Post Office Box 110
Oak Grove, Missouri 64075 (816) 690-4111
Fax: (816) 625-7204 ATTORNEY FORPLAWTWF
CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing was mailed by US Mail, postage prepaid, on this27th day of May, 2005 to:
Robert L. Brady Brown & James PC
1010 Market Street, 2{Jh Floor St. Louis, MO 63101
Robert H. Schnieders