The wrath of Old Man Winter
By Christine Barlow
The decorations are put away, the eggnog is finished, and people are hoping the groundhog didn't see his shadow. But whether he did or not, it's still winter, and that leads to questions about claims, particularly ones involving frozen pipes.
We see frozen-pipe questions particularly in situations where the insured has gone someplace warmer for a while, left the house unattended, and returned to a flooded residence. Exactly how the house was left is critical to whether or not coverage exists. The HO 00 03 10 00 policy language excludes freezing unless one of two conditions exists: The insured had to either maintain heat in the building, or shut off the water supply and drain all systems and appliances of water. The former is more likely when the insured has gone to the beach for a week, and the latter is more common for snowbirds that winter in Florida or some other warm state.
A question of maintenance
But what is maintaining heat in a building? A subscriber had a situation in which an insured was moving out of the home and was using space heaters instead of the furnace to heat the dwelling, since he was not there much of the time. While it was an attempt to maintain heat in the building, it was a rather lackluster attempt. The policy requires the insured to use reasonable care in maintaining the heat, and we do not see space heaters as reasonable care. In our opinion, this claim should be denied.
There is no exclusion in the homeowners' policy for freezing while a property is unattended. Unlike the vandalism clause, the length of time the insured is away is of no importance. So an insured can happily winter in the tropics just as long as he has either left the heat on or turned off the water and drained the pipes. If this is done, then a loss caused by frozen pipes is covered, even if the insured has been away for six months.
The dwelling fire policy does include a clause regarding the vacancy or un-occupancy of the dwelling. The freezing exclusion applies only when the property is vacant, unoccupied, or being constructed -- unless the heat has been left on or the water has been drained. For example, an insured who owned a rental property required his tenant to be responsible for paying the utilities. The tenant stopped paying for the heating oil, which resulted in frozen pipes and water damage. The insured was unaware of this until she evicted the tenant for non-payment of rent. The question was, since the tenant was responsible for maintaining the heat but did not, does the exclusion apply?
This property was not vacant or even unoccupied. It was occupied by a negligent -- and probably very cold -- tenant. Therefore, the exclusion for freezing does not apply. Even though heat was not reasonably maintained, the insured reasonably thought it was being maintained, and therefore cannot be punished because of the actions of a negligent tenant.
A twist on the frozen-pipe question involves mold growth. In this scenario, the insured was away for a while and left the heat on a low setting. The thermostat malfunctioned, resulting in the furnace not turning on during a particularly cold spell. This allowed the pipes to freeze. When the insured returned home, he found not only water, but also mold damage.
The subscriber was concerned about whether or not the mold was covered, since the policy excludes mold that results from an accidental discharge or overflow from within a plumbing system, unless the mold is hidden within the ceilings or walls. In this situation, the mold was clearly visible and not hidden. Does coverage exist for the mold damage?
In this situation, the cause of the loss was frozen pipes, not an accidental discharge from the pipes, although that was the result of the freezing. Since the proximate cause of loss was the frozen pipes, there is no exclusion for visible mold and there is coverage for the loss. The heat was maintained and, even though the system malfunctioned, the insured had reasonably tried to maintain heat in the building.
With cold weather, as long as the insured has taken reasonable steps to protect the property in his absence, there is coverage from damage due to frozen pipes. It's a totally different situation than the insured moving and leaving the home empty. Those who winter in warmer weather intend to return to the home, and often ask a neighbor check in on the property. Frozen plumbing is a fortuitous event when the property is properly cared for, so coverage applies.
*For further information, or to contact this author, please leave a comment and your e-mail address in the forum below.