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1062 Pontiac Road, Inc. and 1062 Trinity v. Axis Surplus Insurance Co.

February 4, 2013

1062 PONTIAC ROAD, INC. AND 1062 TRINITY PARTNERS LLC, T/A MAGGIE O'NEILL'S
v.
AXIS SURPLUS INSURANCE CO.



The opinion of the court was delivered by: Jacob P. Hart United States Magistrate Judge

ORDER AND OPINION

Plaintiffs 1062 Pontiac Road, Inc., and 1062 Trinity Partners LLC, t/a Maggie O'Neill's filed this action to recover from Axis Surplus Insurance Co, ("Axis") their insurer, expenses incurred in connection with an incident in which raw sewage was discharged into the insured property via the bathroom fixtures. Now before the undersigned are the parties' cross-motions for summary judgment with respect to the expense of replacing the broken sewage line which caused the discharge of sewage. For the reasons set forth below, I find in favor of Axis, deciding that the losses in question are not covered by the Axis policy.

I. Factual and Procedural Background

This case was originally assigned to the Honorable Stewart Dalzell. He referred it to the undersigned for a settlement conference, which was held on September 24, 2012. At that time, the parties were able to resolve Plaintiffs' claims for the contents of the insured property and for their business income loss. They also agreed to submit Plaintiffs' structure claim to binding appraisal pursuant to § C.1 of the Business Income Coverage Form of the Axis Policy. They were not, however, able to resolve a claim for many of the expenses initially identified by Plaintiffs as "Emergency Services." Plaintiffs' Statement of Claim, attached to Axis's Motion for Summary Judgment as Exhibit A. Accordingly, it was agreed that the parties would submit to the undersigned cross-motions for summary judgment on that issue.

Specifically, the expenses for which Axis denies coverage are those for identifying, digging up, and replacing the fractured pipe, for removing and replacing excavated soil, and for the installation of a temporary sidewalk. Axis's Exhibit A, supra. Relevantly, the Axis policy includes the following language:

A. Coverage

We will pay for direct physical loss of or damage to Covered Property at the premises described in the Declarations caused by or resulting from any Covered Cost of Loss.

1. Covered Property

Covered Property, as used in this Coverage Part, means the type of property described this Section A.1, and limited to A.2., Property Not Covered, if a Limit of Insurance is shown in the Declarations for that type of property. . . .

2. Property Not Covered

Covered Property does not include: . . .

d. Bridges, roadways, walks, patios, or other paved surfaces; . . .

f. The cost of excavations, grading, backfilling, or filling;

g. Foundations of building, structures, machinery or boilers if their ...


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