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MERZ v. ALLSTATE INS. CO.

January 26, 1988

Donald A. Merz and Carol Merz, Plaintiffs
v.
Allstate Insurance Company, Defendant



The opinion of the court was delivered by: WEBER

 Plaintiffs have sued their homeowners insurance carrier for coverage of damage to home and personal property following a torrential rainstorm. The insurer has filed a motion for summary judgment based on certain provisions of the policies involved and both parties have submitted briefs and evidentiary materials. The essential facts are not in dispute and interpretation of the terms of the insurance policy is for the court.

 FACTS

 Plaintiffs own a home in Shaler Township, Pennsylvania, and carried homeowners insurance with defendant Allstate. On May 30, 1986, an exceptionally heavy rainfall occurred in the area. Although plaintiffs escaped the flash flooding of creeks which caused great property damage and loss of life to other residents of the area, the rear basement wall of the residence collapsed during the rainstorm, causing considerable structural damage to the house as well as the loss of personal possessions.

 Plaintiffs notified the insurer of the loss but after investigation, Allstate refused to pay on the basis that plaintiffs' loss falls within policy exclusions. Plaintiffs then instituted this suit.

 This litigation is complicated somewhat by the fact that there are two different policies from the same insurer which are arguably applicable here. In 1984, plaintiffs contracted for defendant's Deluxe Homeowners Policy. At sometime prior to May 30, 1986, Allstate created the Deluxe Plus Homeowners Policy. Allstate claims that plaintiffs requested the Deluxe Plus Policy and their coverage was converted prior to the subject event. Plaintiffs deny this, claiming they never received a new policy, and the original policy was still in effect. We are not able to determine on this record which policy was actually in effect on May 30, 1986, but a review of the two policies reveals that the result would be the same under both.

 DISCUSSION

 1) Deluxe Policy

 Defendant recites its applicable policy exclusions for Dwelling Protection:

 
Exclusions We Do Not Cover.
 
We do not cover loss or damage to the property described . . . resulting directly or indirectly from:
 
1. Water damage, meaning:
 
a) flood, surface water, waves, tidal water or overflow of any ...

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