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Spector v. Fireman's Fund Insurance Co.

July 15, 2010

ADAM AND SYLVIA SPECTOR, PLAINTIFFS,
v.
FIREMAN'S FUND INSURANCE CO. T/A/D/B/A NATIONAL SURETY CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Tucker, J.

MEMORANDUM

After a bench trial in this matter on June 16, 2010, and pursuant to Fed. R. Civ. P. 52(a), the Court makes the following Findings of Fact:

1. Plaintiffs Adam and Sylvia Spector ("Plaintiffs") purchased their home in 2000 for approximately $1,300,000.00. The home is over 8,000 square feet in size.

2. Plaintiffs' home was constructed by Bentley Homes.

3. Defendant Fireman's Fund Insurance Co. ("Defendant") issued a homeowner's insurance policy to Plaintiffs, Policy No. NZH 01257615 (the "Policy").

4. The Policy specifically provides that no coverage is provided for water damage resulting from "continuous or repeated seepage or leakage of water or stream from any source over a period of weeks, months, or years. See Policy at p. 15 of 21.

5. However, there is an exception to this exclusion, which states there this is coverage where, due to water damage, a loss is sudden and accidental. Sudden and accidental shall include a physical loss that is hidden or concealed for a period of time. A hidden or concealed loss must be reported no later than thirty (30) days after the date appreciable loss or damage occurs and is detected or should have been detected.

6. The Policy also excludes coverage for "faulty, inadequate or defective... workmanship, repair, construction," or the materials used therein. Policy at 16 of 21.

7. During heavy rain storms, Plaintiffs experienced some minor dripping problems which were limited to isolated areas, usually window sills. However, during dry seasons, there were many consecutive months where Plaintiffs had no water leakage problems.

8. In 2006, Plaintiffs noticed that the paint on many of their windows was peeling, which led them to do further investigation.

9. Plaintiff Adam Spector is a finance executive and Plaintiff Sylvia Spector is a trained graphic designer. Neither possesses any specialized experience or knowledge regarding home construction, moisture intrusion, or the like.

10. Plaintiffs determined that they needed expert advice and retained construction consultant Barry A. Bornstein ("Bornstein") to inspect their home.

11. Plaintiffs hired Bornstein for purposes of evaluating any potential problems with the windows and doors in their home. Plaintiffs believed that Bornstein would be over-zealous in his evaluation, as he was known for preparing reports in anticipation of litigation. Plaintiffs were not considering litigation at the time, but desired a critical and thorough inspection.

12. Bornstein came out to inspect Plaintiff's home, and interviewed them about the problems they were experiencing.

13. Bornstein performed an inspection and created a report, however, this inspection did not include any invasive testing. Bornstein noted problems with the window and door frames, as well as signs of leakage in the master bedroom on the ceiling. Given that Bornstein's inspection involved a visual inspection of open and accessible areas, he could not provide commentary on any problems which might exist between the external stucco walls and the internal drywall. Therefore, Bornstein recommended that Plaintiffs have the stucco inspected by an expert.

14. Following Bornstein's recommendation, Plaintiffs retained Jerry Yedinak Stucco Inspection and Design to inspect ...


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