LANDRUM v. ALLSTATE INSURANCE COMPANY

Filing 15

ORDER granting 10 Motion for Summary Judgment. Ordered by US DISTRICT JUDGE TILMAN E. SELF, III on 10/9/2019. (tlw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
KIMBERLY LANDRUM f/k/a KIMBERLY
SHEPARD,
Plaintiff,

CIVIL ACTION NO.
5:18-cv-00458-TES

v.
ALLSTATE INSURANCE COMPANY,
Defendant.

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
______________________________________________________________________________
Plaintiff Kimberly Landrum’s vacation home in Milledgeville, Georgia, was
damaged by water in early March of 2018. Defendant Allstate Insurance Company, with
whom Plaintiff held a homeowners insurance policy, refused to cover the damage,
leading to the instant dispute. Allstate removed the action to this Court from the State
Court of Baldwin County, Georgia, and now moves for summary judgment. Because
Allstate properly denied coverage, its motion is GRANTED.
FACTUAL BACKGROUND
Plaintiff purchased a homeowners insurance policy from Allstate in 2017 that
covers “sudden and accidental direct physical loss” to her Milledgeville, Georgia
property. [Doc. 1-1, pp. 11, 29]. The Policy explicitly excludes coverage for
[s]eepage, meaning continuous or repeated seepage or leakage over a
period of weeks, months, or years, of water, steam or fuel:

a)

from a plumbing, heating, air conditioning or automatic fire
protection system or from within a domestic appliance; or

b)

from within or around any plumbing fixtures, including, but not
limited to shower stalls, shower baths, tub installations, sinks or
other fixtures designed for the use of water or steam.

[Id. at 31].
On April 4, Plaintiff received a call from a neighbor informing her that the
Milledgeville Water Department had left a note on her door. [Doc. 13-1, ¶ 3]. Plaintiff
arrived at the property later that day and discovered water “spewing out from under the
sink in the kitchen.” [Doc. 10-1, K. Landrum Depo., pp. 30:17—31:4]. There was
approximately a half inch of water covering the main floor of the house, and some had
seeped into the basement. [Doc. 13-1, ¶ 6]. Plaintiff turned off the water supply to the
house and later determined that the water came from a supply line running from the
kitchen sink to the refrigerator ice maker. [Id. at ¶ 5]; [Doc. 10-1, K. Landrum Depo., p.
35:17–23]. According to the Milledgeville Water Department, the leak began at 4:00 p.m.
on Sunday, March 11, 2018, and ended at 5:00 p.m. on Wednesday, April 4, 2018, with a
total of “[a]pproximately 5 thousand gallons of water” running continuously at a rate of
nine to ten gallons per hour for that 25-day period. [Doc. 10-1, K. Landrum Depo., p. 210];
[Doc. 13-1, ¶¶ 22, 23].
One day after discovering the spewing water, Plaintiff called Allstate to report the
damage. [Doc. 13-1, ¶ 7]. Allstate adjuster Thomas Specht inspected the property on April
16, 2018 and determined from examining mold growth that water had been coming out
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of the supply line for enough time to deny Plaintiff’s claim. [Doc. 10-2, T. Specht Depo.,
pp. 25:8–13, 29:25—30:9, 42:13—43:8]. Allstate sent Plaintiff a formal denial letter the
following day, citing subsection (a) of the above-quoted Policy provision and explaining
that the loss was “specifically excluded from coverage.” [Id. at p. 92].
In her complaint, Plaintiff claims that the water damage to her property is covered
under the Policy and that Allstate’s denial of coverage constituted a bad-faith breach of
the Policy. [Doc. 1-1, ¶¶ 24–27, 32]. Allstate now moves for summary judgment, arguing
that the Policy clearly excludes coverage, and the Court agrees.
DISCUSSION
A.

Standard of Review

A party is entitled to summary judgment “if 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 a
judgment as a matter of law.” Fed. R. Civ. P. 56(c). As to issues for which the movant
would bear the burden of proof at trial, the “movant must affirmatively show the absence
of a genuine issue of material fact and support its motion with credible evidence
demonstrating that no reasonable jury could find for the non-moving party on all of the
essential elements of its case.” Landolfi v. City of Melbourne, 515 F. App’x 832, 834 (11th
Cir. 2013) (citing Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993)). As to
issues for which the non-movant would bear the burden of proof at trial, the movant may

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(1) simply point out an absence of evidence to support the non-moving party’s case or (2)
provide “affirmative evidence demonstrating that the [non-movant] will be unable to
prove its case at trial.” United States v. Four Parcels of Real Prop. in Greene & Tuscaloosa Ctys.,
941 F.2d 1428, 1438 (11th Cir. 1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Once the movant satisfies its burden, the burden shifts to the non-movant, who
must “go beyond the pleadings and present affirmative evidence to show that a genuine
issue of material fact exists.” Porter v. Ray, 461 F.3d 1315, 1320 (11th Cir. 2006)
(citing Fitzpatrick, 2 F.3d at 1115–17). “A factual dispute is genuine ‘if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.’” Four Parcels, 941
F.2d at 1437 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, (1986)).
In insurance disputes under Georgia law, the burden first rests with the insured
to show that its claim falls within the purview of the insurance policy. Travelers Home &
Marine Ins. v. Castellanos, 773 S.E.2d 184, 186 (Ga. 2015) (quoting Castellanos v. Travelers
Home & Marine Ins., 760 S.E.2d 226, 232 (Ga. Ct. App. 2014) (McMillian, J., dissenting))
(“[A]n insured claiming an insurance benefit has the burden of proving that a claim falls
within the coverage of the policy.”). Once the insured’s burden is met, the burden shifts
to the insurer to prove that a policy exclusion applies to the facts of the case. Haulers Ins.
v. Davenport, 810 S.E.2d 617, 619 (Ga. Ct. App. 2018) (quoting Interstate Life & Accident Ins.
v. Wilmont, 180 S.E.2d 913, 914 (Ga. Ct. App. 1971)) (“Where the insurer seeks to invoke

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an exclusion contained in its policy, it has the burden of proving the facts come within
the exclusion.”).
B.

Policy Language

The parties primarily dispute whether the Policy’s exclusion of “seepage, meaning
continuous or repeated seepage or leakage,” is ambiguous. [Doc. 1-1, p. 31]. Plaintiff
argues that this circular definition renders “seepage” per se ambiguous. Although the
Court agrees that defining a word with the same word is both linguistically improper
and ultimately useless, it does not make this provision ambiguous under Georgia law. 1
An ambiguity only exists where
the words used in the contract leave the intent of the parties in question—
i.e., that intent is uncertain, unclear, or is open to various interpretations.
Conversely, no ambiguity exists where, examining the contract as a whole
and affording the words used therein their plain and ordinary meaning, the
contract is capable of only one reasonable interpretation.
Coleman v. Arrington Auto Sales & Rentals, 669 S.E.2d 414, 416 (Ga. Ct. App. 2008) (quoting
Capital Color Printing v. Ahern, 661 S.E.2d 578, 583 (Ga. Ct. App. 2008)).
The definition of seepage in this case is not open to various interpretations, as the
Policy clearly limits it to its plain meaning and the plain meaning of “leakage.” The

But see Brewington v. State Farm Mut. Auto. Ins., 45 F. Supp. 3d 1215, (D. Nev. 2014) (A circular definition,
in which “the term being defined is used within its own definition” is “inherently ambiguous as [it]
require[s] additional information outside the definition to actually define the term being defined.”). Under
Georgia law, however, where a circular definition can be resolved with the plain and ordinary meaning of
a term, which may require a party to consult a dictionary, the term is not ambiguous. See Coleman, 669
S.E.2d at 416, infra.
1

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ordinary meaning afforded to “seepage” is “percolation or oozing of water or fluid,” 2 “a
process in which a liquid flows slowly out of a hole or through something,” 3 or the
process of flowing or passing “slowly through fine pores or small openings.” 4 The
ordinary meaning afforded to “leakage” is “admission or escape of water or other fluid
through a hole in a vessel, etc.,” 5 the condition of “escap[ing] from a hole or crack in a
pipe or container,” 6 or the act or process or an instance of “enter[ing] or esacp[ing]
through an opening usually by a fault or mistake.” 7
Although Plaintiff seeks to limit these ordinary meanings to water that is “moving
slowly” through an opening, [Doc. 13, p. 14], the Policy’s exclusion of both seepage,
which in some definitions includes a speed component, and leakage, which does not
include a speed component, clearly indicates the intention to exclude any escape of water,
including that which is slow-moving and that which is not. Thus, it cannot reasonably be

2

Seepage, Oxford English Dictionary Online, http://www.oed.com/view/Entry/174831 (Oct. 9, 2019).

Seepage, Cambridge Online Dictionary, https://dictionary.cambridge.org/us/dictionary/english/seepage
(Oct. 9, 2019).

3

Seepage and Seeping, Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/
seepage and https://www.merriam-webster.com/dictionary/seeping (Oct. 9, 2019).
4

5

Leakage, Oxford English Dictionary Online, http://www.oed.com/view/Entry/106657 (Oct. 9, 2019).

Leakage and Leaking, Cambridge Online Dictionary, https://dictionary.cambridge.org/us/dictionary/
english/leakage and https://dictionary.cambridge.org/us/dictionary/english/leak (Oct. 9, 2019).

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Leakage and Leaking, Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/
leakage and https://www.merriam-webster.com/dictionary/leaking (Oct. 9, 2019).
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disputed that the loss to Plaintiff’s property arose from seepage as it is defined in the
Policy and as that definition is informed through ordinary meaning.
C.

Bifurcation of Damages

Plaintiff next argues that Allstate is liable for the damages that occurred during
the first 13 days of the leak, despite the application of the Policy seepage exclusion. This
Court has already determined that at least 14 days of seepage or leakage is required to
trigger an exclusion, like the one here, for seepage or leakage “over a period of weeks,
months, or years.” Taylor v. Foremost Ins., No. 5:15-CV-164 (LJA), 2017 WL 8777469, at *9
(M.D. Ga. Aug. 31, 2017). Extrapolating from Taylor, Plaintiff claims that Allstate is
required to bifurcate the damages to the property and provide coverage for the portion
of the damages that arose from the first 13 days of the 25-day period of seepage, since a
13-day leak would, as a matter of law, occur over a period of days and not weeks. But the
leak in Taylor lasted only eight days as opposed to 25. Id. Thus, Taylor provides no
guidance on the bifurcation of damages that occur from a leak that lasts over 13 days.
The two other cases Plaintiff cites are equally unhelpful to her case. In Wheeler v.
Allstate Insurance, the court found a triable issue of fact where the homeowner plaintiff
sought to recover for damage that was “complete within the first week of flooding,” even
though the flooding occurred for over two months, because the plaintiff’s expert could
determine which damages resulted from the first week of the loss and which did not. 687
F. App’x 757, 767–68 (10th Cir. 2017). Likewise, in Hicks v. American Integrity Insurance Co.

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of Florida, the court granted summary judgment to the plaintiff homeowner where his
expert was able to “calculate the amount of damage to [the] home within the first thirteen
days of the leak.” 241 So. 3d 925, 927 (Fla. Dist. Ct. App. 2018).
Unlike the evidence in Wheeler and Hicks, none of the evidence in this record
establishes that the damages were caused by less than 25 days of leakage. The damages
estimate Plaintiff relies on does not differentiate between damages that resulted from the
first 13 days of the leak and those that resulted from the other 12 days of the leak, and
there is nothing in the record to suggest that such a differentiation has been, or even can
be, made. [Doc. 10-1, K. Landrum Depo., pp. 76:7–12]; [Doc. 13-2, Ex. 1]. Moreover,
Plaintiff admits that her damages result from a “water loss that occurred at the Property
between March 11, 2018 and April 4, 2018” and not from a shorter period of that loss.
[Doc. 13-2, p. 1].
In the absence of evidence to create a genuine issue of fact as to whether the
damages occurred from the first 13 days of the 25-day leak, Plaintiff cannot meet her
burden on summary judgment as to this issue, and there is no dispute that the Policy
excludes coverage. See Porter, 461 F.3d at 1320 (A non-movant must “go beyond the
pleadings and present affirmative evidence to show that a genuine issue of material fact
exists.”).

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D.

Coverage for Mold Damage

Finally, Plaintiff argues that Allstate is liable for mold remediation arising from
the water damage. However, the Policy clearly states that Allstate is only required to pay
for mold remediation arising from a covered water loss. [Doc. 1-1, p. 21]. 8 Because the
Court has already determined that the water loss Plaintiff suffered is not covered by the
Policy, mold resulting from that loss is also not covered. Accordingly, Allstate is not
obligated to pay for any of Plaintiff’s water damages.
CONCLUSION
The Policy unambiguously excludes coverage for the damages arising from the 25day leak on Plaintiff’s property.9 Accordingly, Allstate’s Motion for Summary Judgment
[Doc. 10] is GRANTED.
SO ORDERED, this 9th day of October, 2019.
s/Tilman E. Self, III
TILMAN E. SELF, III, Judge
UNITED STATES DISTRICT COURT

“In the event of a covered water loss under Coverage A—Dwelling Protection . . ., we will pay up to $10,000
for mold, fungus, wet rot or dry rot remediation.” [Doc. 1-1, p. 21] (emphasis added).

8

9

Given that there is no coverage as a matter of law, Plaintiff’s claim for bad faith must also be dismissed.

9