Under Pressure: When Spring Showers Cause Floating Pools
With spring showers come “floating” pool risks, implicating water damage exclusions and anti-concurrent cause provisions in property insurance policies.
April 19, 2018
Ah, spring! A time for chirping birds, sprouting flowers, budding trees, and — floating swimming pools. It is relatively common for property owners to drain their in-ground pools to accomplish some basic spring cleaning tasks: maintenance, repairs, and scrubbing. Nonetheless, the process can be fraught with risk if the pool is left empty for a long period of time, with its plug closed, in months that promise heavy rainfall. This article explores the “floating” pool risk, and coverage under both commercial and homeowner property insurance policies.
What is a Floating Pool and How Can it be Avoided?
When surrounding soil becomes saturated due to flooding or heavy rainfall, creating hydrostatic pressure, an in-ground pool can lift, or “float,” up and out of the ground after it is drained, causing cracking, breaking, and destruction of the pool itself and surrounding property, such as decks, patios, and fences. One court, quoting an expert, explained the process:
A simple view is [that] a concrete pool is a concrete boat and will attempt to float on a water surface, groundwater. The weight of the pool’s contained water is the ballast necessary to keep the pool within the groundwater. . . . [E]mpty, an inground pool is at its most vulnerable state.1
For those pool owners taking notes, “floating” can be avoided in many instances. For example, it is not unusual to find well points around a pool’s perimeter in order to artificially maintain a depressed groundwater table.2 Additionally, vigilant pool owners should limit the amount of time a pool stands completely empty, and/or unscrew the pool plug in the drain system, which allows the groundwater that is higher than the base of the pool to enter and relieve pressure upon the pool.
Is There Coverage for Floating Pool Damage Under a Property Insurance Policy?
There is likely no coverage for floating pool damage under a typical residential or commercial property insurance policy based on the “water damage” exclusion, as well as the anti-concurrent cause provision.3
The plain language of a typical “water damage” exclusion relieves insurance companies from loss caused “directly or indirectly” by “water damage, meaning . . . [w]ater below the surface of the ground, including water which exerts pressure on . . . building . . . swimming pool or other structure.” Furthermore, losses due to water damage are excluded “regardless of any other cause or event contributing concurrently or in any sequence to the loss.”4
This was the precise policy language at issue in Jahier v. Liberty Mut. Group, 883 N.Y.S.2d 283 (2nd Dept. 2009). There, the homeowners’ pool, surrounding patio area, and the plumbing that serviced the pool sustained damage when the empty pool lifted several inches out of the ground after heavy rains had fallen in the area.5 The Appellate Division, Second Department, reversed the lower court and granted summary judgment for Liberty Mutual. The appellate court found that the “water damage” exclusion clearly and unambiguously applied to the loss. The plain language of the exclusion relieved the insurers from loss caused directly or indirectly by water damage, meaning water below the surface of the ground— including water that exerted pressure on the swimming pool.6 Moreover, losses due to water damage were excluded regardless of any other cause or event (such as heavy rainfall) contributing concurrently or in any sequence to the loss.7 The court found that the loss was attributable, at least in part, to the subsurface water pressure that was exerted upon the empty pool.
Other courts across the country have held similarly. See, e.g., Liberty Mut. Fire Ins. Co. v. Martinez, 157 So. 3d 486 (5th Dist. 2015) (reversing the lower court and finding no coverage based on the “water damage” and anti-concurrent cause provision where homeowner’s pool lifted after a tropical storm); South Carolina Farm Bureau Mut. Ins. Co. v. Durham, 380 S.C. 506 (2010) (holding that the insureds’ damages, which were sustained when rain increased hydrostatic pressure around their pool, forcing the pool out of the ground and damaging their deck, were excluded from coverage because the policy contained an anti-concurrent cause provision that applied to water damage). The courts’ findings apply in the commercial context, as well, and even to occasions where the “water damage” exclusion makes no specific reference to “swimming pools.” See, e.g., AGK Holdings, Inc. v. Essex Ins. Co., No. 05a0643n.06, 2005 U.S. App. LEXIS 15984, *3 (6th Cir. Aug. 1, 2005); Amherst Country Club, Inc. v. Harleysville Worcester Ins. Co., 561 F. Supp. 2d 138 (D. NH. 2008).
With spring upon us, and thoughts of lazy days by the pool resurfacing after the winter thaw, it is important that insureds and insurers alike are mindful of the “floating” pool risk, appreciating that property coverage for such a loss is unlikely.
1 AGK Holdings, Inc. v. Essex Ins. Co., No. 05a0643n.06, 2005 U.S. App. LEXIS 15984, *3 (6th Cir. Aug. 1, 2005) (unpublished).
2 A groundwater table is the upper surface of the zone of saturation. It is the depth below the surface where the soil is saturated with water.
3 The “earth movement” exclusion is also commonly cited as a basis for coverage denial. Nonetheless, most courts analyzing insurance coverage for “floating” pool damage focus on the “water damage” exclusion.
4 Typical anti-concurrent causation language provides that the loss will be excluded “whether or not any other cause or event contributes concurrently or in any sequence to the loss.” While the majority of states enforce such provisions, some states, like California, Washington, North Dakota, and West Virginia, do not. These minority jurisdictions have determined that insurers cannot contract around a their state’s public policy interest in enforcing the efficient proximate cause rule.
5 Jahier,883 N.Y.S.2d at 285-286.
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