Filed: May 11, 2020
Latest Update: May 11, 2020
Summary: Case: 19-14539 Date Filed: 05/11/2020 Page: 1 of 9 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 19-14539 Non-Argument Calendar _ D.C. Docket No. 5:18-cv-00458-TES KIMBERLY LANDRUM, f.k.a. Kimberly Shepard, Plaintiff-Appellant, versus ALLSTATE INSURANCE COMPANY, Defendant-Appellee. _ Appeal from the United States District Court for the Middle District of Georgia _ (May 11, 2020) Before WILLIAM PRYOR, BRANCH and FAY, Circuit Judges. PER CURIAM: Case: 19-1
Summary: Case: 19-14539 Date Filed: 05/11/2020 Page: 1 of 9 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 19-14539 Non-Argument Calendar _ D.C. Docket No. 5:18-cv-00458-TES KIMBERLY LANDRUM, f.k.a. Kimberly Shepard, Plaintiff-Appellant, versus ALLSTATE INSURANCE COMPANY, Defendant-Appellee. _ Appeal from the United States District Court for the Middle District of Georgia _ (May 11, 2020) Before WILLIAM PRYOR, BRANCH and FAY, Circuit Judges. PER CURIAM: Case: 19-14..
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Case: 19-14539 Date Filed: 05/11/2020 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-14539
Non-Argument Calendar
________________________
D.C. Docket No. 5:18-cv-00458-TES
KIMBERLY LANDRUM,
f.k.a. Kimberly Shepard,
Plaintiff-Appellant,
versus
ALLSTATE INSURANCE COMPANY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(May 11, 2020)
Before WILLIAM PRYOR, BRANCH and FAY, Circuit Judges.
PER CURIAM:
Case: 19-14539 Date Filed: 05/11/2020 Page: 2 of 9
Kimberly Landrum appeals the summary judgment in favor of her insurer,
Allstate Insurance Company, and against her complaint of breach of contract and
of bad faith refusal to pay. Allstate issued Landrum a policy that insured her
vacation home in Milledgeville, Georgia. After water escaped a water supply line
in Landrum’s kitchen and spread to several rooms of the house, Allstate denied
Landrum’s claim for repairs and mold remediation. The district court ruled that
Landrum’s loss was excluded from coverage. We affirm.
I. BACKGROUND
Landrum’s policy covered “sudden and accidental direct physical loss to
property” and provided, “[i]n the event of a covered water loss, up to $10,000 for
mold, fungus, wet rot or dry rot remediation.” But the policy excluded any “loss to
property” caused by seepage “from a plumbing . . . system or from within a
domestic appliance; or from, within or around any plumbing fixtures, including but
not limited to . . . sinks, or other fixtures designed for the use of water or steam.”
The policy defined “[s]eepage[ as] meaning continuous or repeated seepage or
leakage over a period of weeks, months, or years of water . . . .”
Beginning on March 11, 2018, Landrum’s water meter recorded usage of 9
to 10 gallons of water an hour. On April 3, 2018, a billing technician for the City
of Milledgeville reported that Landrum had used 5,000 gallons of water. That
amount was “not a lot of water” and consistent with a fill flap in a toilet tank
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failing to close, but because the amount exceeded Landrum’s usual water
consumption, the City sent a second technician to check the water meter. The
second technician reported that Landrum’s meter was “creeping slow” and left a
placard on her door and dye tablets for her to use to check her toilets for leaks.
On April 4, 2018, Landrum drove to her property after a neighbor called her
about the placard. Landrum observed water “spewing out from under the sink in
the kitchen” and water “not that deep, but . . . [that] covered” the kitchen floor. She
walked outside, turned off the main water valve, and went back inside to inspect
the house. Landrum observed that the stairs leading to the basement were wet, that
a bathroom and hallway on the main level and part of the basement had water
damage, and that drywall had fallen from the ceiling into a downstairs bedroom.
The water had not spread to a bedroom or den on the main floor or to Landrum’s
garage. Landrum “wip[ed] up water out of the kitchen floor with towels” and drove
home.
On April 5, 2018, Landrum returned to the property. She discovered that the
water supply line from the kitchen sink to the refrigerator was damaged and
immediately filed a claim with Allstate. Allstate recorded on its initial contact
summary that an “ice maker line leak” was the “cause and origin” of Landrum’s
loss and that she was “instructed to keep [the] refrigerator ice maker line.” The
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summary also recorded that Landrum’s claim was “covered—sudden escape of
water from a plumbing source.”
On April 16, 2018, Thomas Specht, an adjuster for Allstate, visited
Landrum’s property. He observed warping on the floor of the cabinet under the
kitchen sink, but Landrum’s damaged water supply line was unavailable for
examination. Specht photographed black mold growing on the walls of the kitchen,
hallway, and stairs to the basement and on the walls and ceiling of two bedrooms
and a bathroom in the basement. He also photographed water stains on the subfloor
of the kitchen and ceiling joists in the basement. When Specht tested the flooring,
the moisture meter registered 58.5 percent moisture in the kitchen and 40.7 percent
moisture in the hallway, and he determined that a significant amount of water had
traveled from the main floor to the basement. Based on the amount of damage to
and mold growth in the house, Specht concluded that the water loss “had been
going on for a period of a few weeks” and called his supervisor to discuss his
findings. Before Specht left the property, he decided that Landrum’s loss was
excluded from coverage as seepage or leakage.
Landrum obtained quotes to repair her property. MPHI Home Specialists
reported that the property required repairs and mold remediation in the kitchen,
hallway, and bathroom on the main floor, in the stairway to the basement, and in a
den, laundry room, and bedroom in the basement. Paces Contracting Services
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estimated that it would cost $12,726.75 to microclean the “heavy” amount of mold
inside Landrum’s property.
After Landrum filed suit in a Georgia court, Allstate removed the action to
federal court and moved for summary judgment. Allstate argued that Landrum’s
loss was excluded as seepage because her water meter and record of damages
established that water had leaked continuously into her kitchen for 25 days,
damaged her floors and walls, and grew mold. Landrum responded that the
“unexpected and abrupt release of water from the supply line servicing [her]
freezer” that resulted in “nine to ten gallons of water usage per hour” was covered
as a “sudden” loss rather than excluded as seepage, which was limited to losses
involving a “low volume of water” that “mov[ed] slowly.” Landrum also argued
that the definition for “seepage” was ambiguous. Alternatively, Landrum argued
that, even if her loss was seepage, the exclusion for losses “over a period of
“weeks” would not apply to losses she incurred between days 1 and 13, and
because she had “a covered water loss,” she was entitled to reimbursement for
mold remediation.
The district court entered summary judgment in favor of Allstate. The
district court ruled that Landrum’s loss was excluded from coverage as seepage,
that its definition was unambiguous as “limited . . . to its plain meaning and to the
plain meaning of ‘leakage’,” and that the exclusion applied to “both seepage,
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which in some definitions includes a speed component, and leakage, which does
not include a speed component . . . .” The district court refused to bifurcate
Landrum’s damages absent evidence “that [her] damages were caused by less than
25 days of leakage” or that “such a differentiation has been, or even can be, made.”
And the district court explained that Landrum did not have “a covered water loss”
that would pay for mold remediation.
II. STANDARD OF REVIEW
We review a summary judgment de novo. Hyman v. Nationwide Mut. Fire
Ins. Co., 304 F.3d 1179, 1185 (11th Cir. 2002). We also review de novo the
interpretation of provisions in an insurance contract. James River Ins. Co. v.
Ground Down Eng’g, Inc.,
540 F.3d 1270, 1274 (11th Cir. 2008). Summary
judgment is appropriate when “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
III. DISCUSSION
Under Georgia law, which the parties agree applies, “[a]n insurance policy is
simply a contract, the provisions of which should be construed as any other type of
contract.” Am. Empire Surplus Lines Ins. Co. v. Hathaway Dev. Co., 707 S.E.2d
369, 371 (Ga. 2011) (quoting RLI Ins. Co. v. Highlands on Ponce,
635 S.E.2d 168,
170 (Ga. Ct. App. 2006)). “To determine the insurer’s extent of liability under a
policy of insurance, a consideration must be made of all those essential provisions
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which fix, create, limit, or enlarge liability.” Ga. Farm Bureau Mut. Ins. Co. v.
Meyers, 548 S.E.2d 67, 69 (Ga. Ct. App. 2001). We must “construe the contract as
written” and interpret it “according to the entirety of its terms and conditions . . . .”
Cincinnati Ins. Co. v. Gwinnett Furniture Mart, Inc.,
226 S.E.2d 283, 285 (Ga. Ct.
App. 1976). When the “language is unambiguous, the court simply enforces the
contract . . . and looks to [it] alone for the meaning” of its terms. Am.
Empire, 707
S.E.2d at 371 (quoting RLI
Ins., 635 S.E.2d at 171).
Landrum’s claim to repair, remediate, and replace her property is excluded
from coverage. Her insurance policy excludes a loss of property caused by
“continuous or repeated seepage or leakage over a period of weeks . . . from a
plumbing . . . system . . . or from within or around any plumbing fixtures, including
. . . sinks, or other fixtures designed for the use of water . . . .” Allstate submitted
the record of water usage on Landrum’s property and Specht’s testimony to
establish that Landrum’s loss was caused by water streaming into her house for 25
days. Landrum offered no contrary evidence. She even admitted in the material
facts attached to her opposition to summary judgment that her “loss . . . occurred at
the Property between March 11, 2018, and April 4, 2018.”
Landrum argues that the exclusion for seepage “refer[s] only to slow-
moving releases of water,” but the policy defines seepage more expansively. Her
policy states that “[s]eepage mean[s] . . . seepage or leakage.” Use of the
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disjunctive “or” in the policy “indicates alternatives and requires that those
alternatives be treated separately,” Quindlen v. Prudential Ins. Co. of Am., 482
F.2d 876, 878 (5th Cir. 1973), to determine what constitutes seepage. See also
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts, 116 (2012) (“Under the conjunctive/disjunctive canon, . . . or creates
alternatives.”). Because seepage and leakage are not defined in the policy, we
consider their ordinary meanings. Am.
Empire, 707 S.E.2d at 371; see W. Pac. Mut.
Ins. Co. v. Davies,
601 S.E.2d 363, 367 (Ga. Ct. App. 2004) (“[T]erms in an
insurance policy are given their ordinary and customary meaning.”). See also
Scalia & Garner, Reading Law at 69 (“Words are to be understood in their
ordinary, everyday meanings . . . .”). Seepage entails a “[p]ercolation or oozing” or
“slow movement of water.” Seep, The Oxford English Dictionary (online ed.). But
leakage has no limitation on the speed of water. Leakage involves a “loss of” and
“escape of water or other fluid through a hole,” Leakage, The Oxford English
Dictionary (online ed.), and occurs when an object “let[s] a substance . . . out
through an opening.” Leak, The Merriam-Webster Dictionary (11th ed. 2004).
Because Landrum’s insurance policy excluded seepage or leakage, the district
court did not err by interpreting the exclusion to include “any escape of water,
including that which is slow-moving and that which is not.” And as the district
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court concluded, because “the water loss Plaintiff suffered is not covered by the
Policy, mold resulting from that loss is also not covered.”
VI. CONCLUSION
We AFFIRM the summary judgment in favor of Allstate Insurance
Company.
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