Weekly Law Resume - May 30, 2013: Insurer May Exclude Water Leak Claim Where Leak Developed Slowly and Was Ongoing and Intermittent, Despite Instantaneous Nature of Actual Pipe Breach by Water

by Low, Ball & Lynch

Leroy Brown, et al. v. Mid-Century Insurance Company
California Court of Appeal, Second Appellate District (April 24, 2013)

In this case, the Court of Appeal considered the meaning of “sudden” in an insurance policy which contained an exclusion for “gradual,” “slow” or “intermittent” water discharge. In Brown, homeowners argued that the development of hot water line leak due to corrosion was “sudden” in that the initial water penetration of the pipe was at a specific instant as a spray or stream, despite the undisputed facts that the leak developed over time by corrosion and was ongoing and intermittent when it was discovered.

On February 18, 2009, homeowners Leroy and Terrie Brown began observing persistent condensation near the windows of their three-story house. Shortly afterwards, mold and mildew developed throughout the home. On March 17 or 18, 2009 a plumber was hired to identify the source of the water. With the water pressure turned on but at a reduced level, the plumber found water dripping from an open hole in a hot water pipe. The Browns tendered the claim to their homeowner’s insurer, Mid-Century Insurance Company.

The Mid-Century policy contained “limited” water damage coverage for “direct physical loss or damage to covered property from direct contact with water, but only if the water results from …(4) a sudden and accidental discharge…or release of water…” The policy further stated: “A sudden and accidental discharge of water does not include a constant or repeating gradual, intermittent or slow release of water, or the infiltration or presence of water over a period of time.” The policy also included an exclusion for mold which stated in part: “We do not insure loss or damage consisting of, composed of, or which is fungi.”

Mid-Century’s investigator found the failed section of hot water pipe which had been encased in concrete. The leaking pipe section was heavily corroded near a 90 degree angle bend and contained a 1/8 diameter hole. Mid-Century denied the claim, explaining that the “cause of loss was wear and tear which caused a hole in the pipe, allowing water to leak into the crawl space over a period of time.” It stated that the loss is uninsured or excluded from the policy.

The Browns sued Mid-Century for, among other causes of action, breach of contract, breach of the implied covenant of good faith and fair dealing, and punitive damages. Mid-Century prevailed on motion for summary judgment, and the Browns appealed.

The Court of Appeal affirmed Mid-Century’s judgment in its favor. The Court first examined the definition of “sudden” within the context of the Browns’ hot water pipe leak. In opposing Mid-Century’s motion for summary judgment, the Browns had submitted a declaration from a plumbing expert who stated that what occurred was a “sudden breach” of the pipe, in that it “would have taken a mere fraction of a second (a ‘nano’ second) between the water tight and non-water tight condition, which is the breach of the pipe.” The expert stated the pipe “failed suddenly, and ultimately a spray or stream (not drips) of hot water shot through the holes in the pipe…and would have continued to spray and stream (not drip)…until the water line was shut off.”

The Court of Appeal noted that it was undisputed that the water incursion, even if commenced within a “nanosecond,” was “constant or intermittent,” was caused by corrosion that wore away the pipe, and occurred over a period of either a month (the Browns’ contention) or two or five months (Mid-Century’s contention). Thus, the Court found that within the plain meaning of the policy terms, the water discharge did not qualify as “sudden.” In addition, under California law the Court found that “sudden” is defined as having a temporal element and does not mean a gradual or continuous discharge. Standun, Inc. v. Fireman’s Fund Ins. Co. (1998) 62 Cal.App.4th 882, 889. The Court noted that under the Browns’ interpretation, every event or condition not existing from the dawn of time would be considered “sudden” because at one moment it did not exist and the next moment it did (known as the “metaphysical moment” theory). Saint Paul Surplus Lines, Ins. Co. v. Geo Pipe Co. (Tex.Ct.App.2000) 25 S.W.3d 900 at 905.

The Court concluded the Browns’ expert did not create a triable issue of material fact, and agreed with the trial court that the fact that the pipe’s breach occurred within a fraction of a second does not mean the release of water was “sudden.”


The Court recognized that focusing upon the “nanosecond” moment of a pipe’s outer breach by water at the molecular level would render “sudden” to be mere surplusage. Instead, the Court supported the notion that the correct determining factors were the cause of the leak by gradual corrosion and the ongoing, intermittent nature of the water loss over several months.

For a copy of the complete decision see:


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Low, Ball & Lynch | Attorney Advertising

Written by:

Low, Ball & Lynch

Low, Ball & Lynch on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.