OPINION AND ORDER REGARDING SUMMARY JUDGMENT MOTIONS

ROBERTO A. LANGE, District Judge.

I. Introduction

This case involves an insurance coverage dispute between Plaintiffs Jamie Swenson and Randy Stewart ("Plaintiffs") and Defendant State Farm. Defendant has moved for summary judgment on all of Plaintiffs' claims. Doc. 27; Doc. 28; Doc. 29; Doc. 46. Plaintiffs oppose Defendant's motion, Doc. 43; Doc. 44, and have filed a motion for partial summary judgment of their own, seeking a determination from this Court that the policy in question covers their loss. Doc. 35; Doc. 37; Doc. 38. Defendant opposes Plaintiffs' motion for partial summary judgment. Doc. 40; Doc. 42.

II. Facts

In mid-October 2007, Plaintiffs Jamie Swenson and Randy Stewart contracted with DJ Construction to build a single-family Spanish contemporary style home at 47711 273rd Street in rural Harrisburg, South Dakota. Doc. 29 at ¶ 1; Doc. 44 at ¶ 1. Plaintiffs and DJ Construction revised and replaced the 2007 contract with a July 11, 2008 contract. Doc. 44 at ¶ 1; Doc. 30-1 at 19-23. The revised contract provided that DJ Construction would serve as the general contractor for the project at a fixed price of $1,363,952.00, subject to certain allowances and construction alternatives. Doc. 29 at ¶ 2; Doc. 44 at ¶ 2.

Construction of the home began in November 2007 and continued intermittently until the summer of 2009, when Plaintiffs discovered that, among several other problems with the house, DJ Construction and certain subcontractors had failed to adequately protect the partially constructed house from the elements during construction, which allowed melting snow and rain to intrude into the house. Doc. 29 at ¶ 3; Doc. 44 at ¶ 3; Doc. 38 at ¶ 3; Doc. 40 at ¶ 3. Following this discovery, DJ Construction stopped all work and left the home in its incomplete condition. Doc. 29 at ¶ 3; Doc. 44 at ¶ 3. Construction has not recommenced since that time and the home remains incomplete and uninhabitable. Doc. 29 at ¶ 4; Doc. 44 at ¶ 4. Plaintiffs hired Thomas J. Irmiter of Forensic Building Science, Inc. to inspect the home in the fall of 2009. Doc. 29 at ¶ 5; Doc. 44 at ¶ 5. Irmiter issued a report on December 11, 2009, in which he identified the following three categories of damage to the home:

Doc. 29 at ¶ 6; Doc. 44 at ¶ 6.

Plaintiffs sued DJ Construction in 2009 in the Second Judicial Circuit Court, Lincoln County, South Dakota. Doc. 29 at ¶ 7; Doc. 44 at ¶ 7. In their state court complaint, Plaintiffs alleged that they "discovered various improper construction practices that were used or permitted to be used by DJ Construction and its subcontractors," including but not limited to:

Doc. 29 at ¶ 8; Doc. 44 at ¶ 8.

Plaintiffs also submitted a claim1 to State Farm under their homeowner's policy ("Policy"), which was in effect from July 7, 2009 to July 7, 2010.2 Doc. 29 at ¶ 9; Doc. 44 at ¶ 9. Plaintiffs claimed that rain and snow caused the water damage3 to their home, although construction issues with the home allowed such water infiltration.

The Policy under which Plaintiffs made their claim provides that "[w]e insure for accidental direct physical loss to the property... except as provided in SECTION ILOSSES NOT INSURED." Doc. 30-7 at 11. Three paragraphs under Section I are relevant to this case. Under paragraph 1 of Section I, the Policy states:

Doc. 30-7 at 13-14. ("deterioration and wet or dry rot exclusion").

Paragraph 2 of "SECTION I-LOSSES NOT INSURED" states:

Doc. 30-7 at 14; 335 ("fungus exclusion").

Finally, Paragraph 3 of "SECTION I-LOSSES NOT INSURED" contains the following exclusion:

Doc. 30-7 at 14-15 ("negligent construction exclusion").

In their claim to Defendant, Plaintiffs listed "rainwater (see attached report)" as the cause of their loss, claiming "more than $1,700,000" in damage to the home. Doc. 29 at ¶ 9; Doc. 44 at ¶ 9. In a September 1, 2010 letter, Defendant denied Plaintiffs' claim based on several exclusions in the policy. Doc. 29 at ¶ 10; Doc. 44 at ¶ 10; Doc. 30-6. On December 28, 2010, Plaintiffs filed the present action against Defendant for breach of contract and bad faith based on Defendant's denial of coverage. Doc. 29 at ¶ 11; Doc. 44 at ¶ 11. Plaintiffs' Complaint asserts that DJ Construction's failure to adequately protect the home from the elements during construction "allowed melting snow and rain to intrude into the [home], and caused significant water damage to the [home]," and that the policy covers this water damage. Doc. 29 at ¶ 12; Doc. 44 at ¶ 12; Doc. 1-2 at 2.

During his deposition in Plaintiffs' state court case against DJ Construction, Plaintiffs' expert Dan Irmiter testified that the end result of the failure to protect the house from the elements during construction was fungal growth. Doc. 29 at ¶ 18; Doc. 44 at ¶ 18; Doc. 30-8 at 4. Specifically, Irmiter explained that:

Doc. 29 at ¶ 18; Doc. 44 at ¶ 18; Doc. 30-8 at 4. According to Irmiter, the fungal growth in the basement transferred to the upper portion of the home through a process he called "cross-contamination." Doc. 30-8 at 4-5. Irmiter testified that the additional water coming into the home during the upper framing stages — which provided "additional food ... or a food source, more water" — "exacerbated" the cross-contamination process. Doc. 29 at ¶ 19; Doc. 44 at ¶ 19; Doc. 30-8 at 4-5.

Charles Lane, Defendant's expert, explained:

Doc. 38 at ¶ 4; Doc. 40 at ¶ 4; Doc. 30-4 at 5. Lane further opined that the "extensive water intrusion into the basement" provided "excessive moisture" that vaporized into the air causing increased "adsorption of moisture by cellulose containing construction materials including wood and gypsum board paper," which resulted in the "atypical mold growth in these materials." Doc. 29 at ¶ 20; Doc. 44 at ¶ 20; Doc. 30-4 at 9.

During his deposition in the state court proceeding, Irmiter was asked about the difference between water staining and water damage. Doc. 30-8 at 6. Irmiter testified that:

Doc. 29 at ¶ 21; Doc. 44 at ¶ 21; Doc. 30-8 at 6-7.

Irmiter testified that he had been trained to identify two types of fungus, both of which are associated with wood rot. Doc. 30-8 at 10. Irmiter explained "[o]ne is a brown rot and one is a white rot fungus." Doc. 29 at ¶ 22; Doc. 44 at ¶ 22; Doc. 30-8 at 10. During his September 9, 2009 inspection of the home, Irmiter visually identified the "water staining" on the trusses in the home as white or brown fungus. Doc. 29 at ¶ 23; Doc. 44 at ¶ 23; Doc. 30-8 at 10. Irmiter stated that "there's a bunch of aspergillus penicillin down [in the basement], the black stuff. That's pretty easy to identify." Doc. 29 at ¶ 22; Doc. 44 at ¶ 22; Doc. 30-8 at 10. Irmiter created a document entitled "Collected Truss Data" to record the information he gathered while inspecting the house. Doc. 30-9. On every truss where Irmiter noted "water damaged" components, he also visually identified the type of fungus on the component. Doc. 30-9.

The "black stuff appearing on the wood in the pictures Irmiter took of the house and included with his report is visible mold or fungal growth. Doc. 29 at ¶ 24; Doc. 44 at ¶ 24; Doc. 30-10. Rather than testing every location where he visually sees mold growth, Irmiter pulled three or four representative samples and then "extrapolate[d]" that every time he saw this condition, "there's more than a 98-percent shot that there's going to be mold on there that I have to take care of." Doc. 30-8 at 8; Doc. 29 at ¶ 25; Doc. 44 at ¶ 25. Each of the ten samples Irmiter took from the home and analyzed showed the presence of fungal growth. Doc. 29 at ¶ 26; Doc. 44 at ¶ 26; Doc. 30-11.

III. Discussion

A. Summary Judgment Standard

Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Summary judgment is not "a disfavored procedural shortcut, but rather ... an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy, and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Rule 1 of the Federal Rules of Civil Procedure). On summary judgment, courts view "the evidence and the inferences that may be reasonably drawn from the evidence in the light most favorable to the nonmoving party." E.E.O.C. v. CRST Van Expedited, Inc., 679 F.3d 657, 686 (8th Cir.2012) (quoting Mayer v. Countrywide Home Loans, 647 F.3d 789, 791 (8th Cir.2011)). A party opposing a properly made and supported motion for summary judgment must cite to particular materials in the record supporting the assertion that a fact is genuinely disputed. Fed.R.Civ.P. 56(c)(1); Gacek v. Owens & Minor Distrib., Inc., 666 F.3d 1142, 1145 (8th Cir.2012).

B. South Dakota Law Concerning Insurance Contracts

In this diversity jurisdiction case, South Dakota law governs the interpretation of the Policy. See Secura Ins. v. Horizon Plumbing, Inc., 670 F.3d 857, 861 (8th Cir.2012) ("State law governs the interpretation of insurance policies when federal jurisdiction is based on diversity of citizenship."). In South Dakota, insurance contract interpretation is a question of law for which the Supreme Court of South Dakota has developed "special rules of construction." Cornelius v. Nat'l Cas. Co., 2012 SD 29, ¶ 6, 813 N.W.2d 167, 169 (citations omitted). "If the rules of interpretation leave a genuine uncertainty as to which of two or more meanings is correct, the policy is ambiguous. Ambiguity in an insurance policy is determined with reference to the policy as a whole and the plain meaning and effect of its words." Id., 813 N.W.2d at 169 (citations and internal quotation marks omitted). "If the provisions of an insurance policy are ambiguous [the Supreme Court of South Dakota applies] the rule of liberal construction in favor of the insured and strictly against the insurer." Id. at ¶ 6, 813 N.W.2d at 170 (citations and internal quotation marks omitted). This approach, however, does not mean that "the court may seek out a strained or unusual meaning for the benefit of the insured." Id., 813 N.W.2d at 170 (citations and internal quotation marks omitted). When, as in the present case, "an insurer invokes a contract exclusion to disallow coverage, the insurer has the burden of proving that the exclusion applies." Auto-Owners Ins. Co. v. Hansen Hous., Inc., 2000 SD 13, ¶ 10, 604 N.W.2d 504, 509 (citations and internal quotation marks omitted).

By its terms, the Policy covers "accidental direct physical loss to the property"6 unless a particular cause of loss is excluded from coverage. Doc. 30-7 at 9. Plaintiffs contend that DJ Construction's failure to adequately protect the home from the elements during construction allowed melting snow and rain to intrude into the home and caused significant problems that Plaintiffs call "water damage." Plaintiffs argue that the Policy covers this "water damage." Defendant disputes coverage under the policy, arguing that several exclusions in the policy bar recovery for Plaintiffs' claimed loss. Specifically, Defendant points to three exclusions: 1) the fungus exclusion, 2) the deterioration and wet or dry rot exclusion, and 3) the negligent construction exclusion. Defendant contends that Plaintiffs cannot avoid these policy exclusions by labeling their claimed loss as "water damage." To allow Plaintiffs to do so, Defendant contends, would ignore the contractor's precipitating defective workmanship and the subsequent rot and fungal growth.

C. Applicability of Fungus Exclusion

The primary problems with Plaintiffs' home are that the water intrusion and improper remediation resulted in fungal growth and that construction was discontinued prior to completion of the home. The Policy's fungus exclusion provides that the Policy does "not insure under any coverage for any loss which would not have occurred in the absence of ... fungus." Doc. 30-7 at 14, 33. In their brief, Plaintiffs argued that the efficient proximate cause doctrine7 renders the fungus exclusion inapplicable. Doc. 43 at 1, 7-8. The Supreme Court of South Dakota recognized the efficient proximate cause doctrine in Lummel v. Nat'l Fire Ins. Co., 50 S.D. 502, 210 N.W. 739, 742 (1926). "The doctrine of efficient proximate cause governs situations where a risk specifically insured against sets other causes in motion in an unbroken sequence between the insured risk and the ultimate loss. In such situations, the insured risk is regarded as the proximate cause of the entire loss, even if the last step in the chain of causation was an excepted risk." TNT Speed & Sport Ctr., Inc. v. Am. States Ins. Co., 114 F.3d 731, 733 (8th Cir.1997) (applying Missouri law). "[I]n jurisdictions which apply the efficient proximate cause doctrine, coverage may be afforded for mold if it is determined that the efficient proximate cause of the loss is a covered `cause of loss' such as water infiltration." 4 Philip L. Bruner & Patrick J. O'Connor, Jr., Bruner & O'Connor on Construction Law, § 11:236 n. 4 (2012); see also Russ & Segalla, supra, § 153:86 ("In a jurisdiction that has adopted the efficient proximate cause rule, the policy provides coverage for a loss efficiently caused by a covered peril, even though other excluded perils contributed to cause the loss.").

One limit to the efficient proximate cause doctrine, however, is that it is only applied "`where two separate or distinct perils could have occurred independently of the other and caused damage.'" Cain v. Fortis Ins. Co., 2005 SD 39, ¶ 25, 694 N.W.2d 709, 714 (quoting Capitol Indem. Corp. v. Evolution, Inc., 293 F.Supp.2d 1067, 1072 (D.N.D.2003)). "When, however, the evidence shows the loss was in fact occasioned by only a single cause, albeit one susceptible to various characterizations, the efficient proximate cause analysis has no application. An insured may not avoid a contractual exclusion merely by affixing an additional label or separate characterization to the act or event causing the loss." Chadwick v. Fire Ins. Exch., 17 Cal.App.4th 1112, 1117, 21 Cal.Rptr.2d 871 (Cal.Ct.App.1993).

Defendant's fungus exclusion policy language, however, contains a lead-in clause referred to as an "anti-efficient proximate cause doctrine clause," or "an anticoncurrent causation provision." The lead-in clause, when read in combination with the fungus exclusion, states that the Policy does not cover any loss which would not have occurred in the absence of fungus

Doc. 30-7 at 14, 33. The Supreme Court of South Dakota has yet to consider the enforceability of such an anti-efficient proximate cause doctrine clause. See 4 David L. Leitner et al., Law and Prac. of Ins. Coverage Litig. § 52:36 (2012). When the Supreme Court of South Dakota "has not spoken on a particular issue of law," this Court "must attempt to predict what [the Supreme Court of South Dakota] would decide if it were to address the issue." Jurrens v. Hartford Life Ins. Co., 190 F.3d 919, 922 (8th Cir.1999) (citations and internal quotation marks omitted). In doing so, this Court "may consider relevant state precedent, analogous decisions, considered dicta, and any other reliable data." Id. (citations and internal quotation marks omitted).

Under South Dakota law, "[t]he existence of the rights and obligations of parties to an insurance contract are determined by the language of the contract, which must be construed according to the plain meaning of its terms. Thus, in deciphering the language of the insurance contract, the court must employ a plain meaning approach." State Farm Fire & Cas. Co. v. Harbert, 2007 SD 107, ¶ 17, 741 N.W.2d 228, 234 (citations and internal marks omitted). The plain meaning of the fungus exclusion in the policy at issue is to eliminate application of the efficient proximate cause doctrine.

A review of the relevant case law reveals that "most courts which have addressed this issue have found that exclusionary language designed to avoid the `efficient proximate cause' doctrine is enforceable." Assurance Co. of Am., Inc. v. Jay-Mar, Inc., 38 F.Supp.2d 349, 354 (D.N.J.1999) (citation omitted); see also St. Mary's Area Water Auth. v. St. Paul Fire & Marine Ins. Co., 472 F.Supp.2d 630, 636 (M.D.Pa.2007) ("An anticoncurrent-cause clause defeats the operation of the efficient proximate cause rule."); Preferred Mut. Ins. Co. v. Meggison, 53 F.Supp.2d 139, 142 (D.Mass.1999) (explaining that the "vast majority of states" uphold "anticoncurrent causation provisions"); Russ & Segalla, supra, § 101:45 ("The majority of jurisdictions permit the parties to an insurance contract to contract out of the efficient proximate cause doctrine."); Julie A. Passa, Comment, Insurance Law-Property Insurance: Adopting the Efficient Proximate Cause Doctrine, But Saving No to Contracting Out of It, 79 N.D. L.Rev. 561, 572 (2003) ("Most courts have held that parties have the freedom to contract as they choose and therefore may contract out of the effect of the efficient proximate cause doctrine.").

In TNT Speed & Sport Ctr. Inc. v. Am. States Ins. Co., 114 F.3d 731 (8th Cir. 1997), the Eighth Circuit considered whether an anti-efficient proximate cause doctrine clause was enforceable under Missouri law. Like the Supreme Court of South Dakota, the Missouri Supreme Court had not decided whether parties could contract out of the efficient proximate cause doctrine. Id. at 733-34. The Eighth Circuit explained that, under those circumstances, "it was entirely proper for the district court to consider relevant precedents from other jurisdictions." Id. at 734. The Eighth Circuit then affirmed the district court's conclusion that the "more persuasive cases from other states recognize that the parties may contract out of application of the efficient proximate cause doctrine." Id. at 733 (citing Alf v. State Farm Fire and Cas. Co., 850 P.2d 1272, 1277 (Utah 1993) ("We believe that the proper path to follow is to recognize the efficient proximate cause rule only when the parties have not chosen freely to contract out of it. As the Colorado Supreme Court stated in Kane v. Royal Ins. Co. of Am., 768 P.2d 678, 685 (Colo.1989), `the efficient proximate cause rule, if it were adopted by this court, must yield to a well-settled principle of law: namely, that courts will not rewrite a contract for the parties.'"); State Farm Fire & Cas. Co. v. Paulson, 756 P.2d 764, 769 (Wyo.1988) (excluding coverage due to the existence of an anti concurrent-cause clause); Schroeder v. State Farm Fire & Cas. Co., 770 F.Supp. 558, 561 (D.Nev.1991) ("[W]e can see no public policy reason for disallowing parties to contract out of [the efficient proximate cause] doctrine."); Millar v. State Farm Fire & Cas. Co., 167 Ariz. 93, 804 P.2d 822, 826 (Ariz.Ct.App.1990) (denying coverage based on the existence of an anti-efficient cause clause)). This Court predicts that the Supreme Court of South Dakota would follow the great weight of the authority to allow parties to contractually agree that the efficient proximate cause doctrine does not apply to certain exclusions in an insurance policy. The lead-in clause to the fungus exclusion in the Policy at issue precludes application of the efficient proximate cause doctrine to the fungus exclusion itself. Because the efficient proximate cause doctrine does not apply to the fungus exclusion and because the fungus exclusion is not ambiguous, Plaintiffs may not recover for any loss that would not have occurred in the absence of fungus, regardless of whether a covered peril was the efficient proximate cause of the loss.

The next issue for this Court is whether Plaintiffs' claims are completely barred by the fungus exclusion or other exclusions such that Defendant is entitled to summary judgment, or whether a genuine issue of material fact remains on what loss might be covered. The parties apparently conducted little discovery in this case8 and thus argue their respective positions based primarily on three sources of information: (1) A field report from Plaintiffs' expert Irmiter, (2) excerpts from the transcript of Irmiter's deposition in the state court action Plaintiffs brought against DJ Construction and certain subcontractors, and (3) the report of Defendant's expert Lane. Plaintiffs characterize the loss generally as "water damage" and, at the hearing in this case, asserted that there was water damage causing damage that was not all fungal in nature. Defendant counters that Plaintiffs are taking excerpts of their expert's report out of context and attempting to recharacterize as "water damage" a loss that truly is from fungus and mold. Because neither party evidently deposed the other's expert and because neither party submitted an explanatory affidavit from their expert, this Court is left with reading Lane's report and Irmiter's report and the transcript from Irmiter's deposition in the state action to determine if there exists a genuine issue of material fact.

Specifically, in support of an argument in the alternative that the loss to the house consists of water damage independent of any fungal growth, Plaintiffs quote paragraphs 3.2.2, 3.2.3, 3.2.4, and 3.3.5 of Irmiter's report. Doc. 37 at 6. When read in its entirety, Irmiter's report is a summary and critique of the home's partial construction and an evaluation of the problems at the home. Irmiter does not attempt in the report or in his deposition to distinguish between water damage of a fungal nature and water damage not of a fungal nature. Rather, his report is focused primarily on construction issues and the cause of the water damage resulting in mold growth. The particular paragraphs of Irmiter's report cited by Plaintiffs have as their theme that high levels of moisture in the wood caused fungal decay which, in turn, requires replacement of the wood.

For instance, while paragraph 3.2.2 uses the term "water damage," the gist of the paragraph is that it is the wood decay fungi, rather than any "water damage," that requires removal and replacement of the trusses:

Doc. 36-6 at 11 (emphasis added). Irmiter further documented the presence of fungus on the basement trusses in the "Collected Truss Data" document. Doc. 30-9. On each truss that Irmiter listed as having "water damaged" components, he visually identified the type of fungus on the truss. Doc. 30-9.

Paragraph 3.2.3 immediately follows paragraph 3.2.2 of Irmiter's report. While paragraph 3.2.3 does not discuss wood moisture content or "fungus," it uses the term "water damage" as if synonymous with fungus:

Doc. 36-6 at 11. During his deposition, Irmiter testified that the "Geotek report indicates that there's some fungal growth up in the attic assembly as well." Doc. 41-1 at 3.

Like paragraph 3.2.2, paragraphs 3.2.4 and 3.3.5 of Irmiter's report discuss high wood moisture content. Paragraph 3.2.4 provides:

Doc. 36-6 at 11-12 (emphasis added).

Paragraph 3.3.5 states:

Doc. 36-6 at 12 (emphasis added). Irmiter testified in his deposition that because the OSB sheathing had "been wetted too much," the OSB began to delaminate, meaning that the wood flakes making up the OSB sheathing began to pull apart. Doc. 41-1 at 7. Paragraphs 3.2.4 and 3.3.5 are consistent with Irmiter's testimony that when moisture levels exceed 16% over a prolonged period of time, "fungal growth is going to start." Doc. 30-8 at 6.

Plaintiffs also refer to a section of Lane's report to suggest that there is "water damage" apart from mold. The first paragraph of Opinion No. 1 in Lane's report, however, does not support Plaintiffs' contention that the "water damage" they seek coverage for is a loss separate from fungal growth:

Doc. 30-4 at 5.

Plaintiffs, in briefing to this, Court acknowledged that "water damage" is not severable from the mold damage by stating that "[i]t is impossible to distinguish the water damage from the mold damage." Doc. 43 at 8. Plaintiffs' expert Irmiter appears to have equated the water damage with the fungal issues. When answering a question about how he assesses "water damage," Irmiter testified that he was "specifically [] trained to identify two types of fungus. Both are associated with wood rot. One is a brown rot and one is a white rot fungus. And so what I was primarily looking — there's a bunch of aspergillus penicillin down there, the black stuff. That's pretty easy to identify." Doc. 30-8 at 10.

When a properly supported summary judgment motion is filed, the non-moving party may not rest on its allegations but must come forward with evidence establishing that a genuine issue of fact for trial exists. See Ryan v. Capital Contractors, Inc., 679 F.3d 772, 776 (8th Cir.2012). Plaintiffs chose to argue that there was coverage for all water damage including fungus under the efficient proximate cause doctrine, did not present evidence to separate water damage from fungal damage, and filed a cross-motion for summary judgment on coverage asserting that there was fact question for trial. Plaintiffs' counsel, in answer to questions from this Court at oral argument about distinguishing mold damage from other "water damage," made only very generalized statements of there being other water damage besides mold and fungus. Plaintiffs' generalized assertion of "water damage" does not thereby give rise to a question of fact.9

An instructive case is Fiess v. State Farm Lloyds, 202 S.W.3d 744 (Tex.2006), in which the Texas Supreme Court ruled that an ensuing loss provision that followed a fungus/mold exclusion did not provide coverage for mold contamination resulting from water damage otherwise covered under the policy. Id. at 750-53. The Texas Supreme Court in Fiess rejected the plaintiff's argument that mold stemming from a roof and window leak constituted water damage: "We do not think that a single phenomenon that is clearly an excluded risk under the policy was meant to become compensable because in a philosophical sense it can also be classified as water damage; it would not be easy to find a case of rot or dampness of atmosphere not equally subject to that label and the exclusions would become practically meaningless." Id. at 750. "[A] policy exclusion for `mold,'" the Texas Supreme Court explained, "cannot be disregarded by simply deeming all mold to be `water damage.'" Id. at 751.

Another instructive case is Boughan v. Nationwide Prop. & Cas. Co., No: 10457, 2005 WL 126781 (Ohio Ct.App.2005), in which the floor of the plaintiffs home experienced rot caused by water seepage through cracks in the home's brickwork. Id. at *1. The insurance policy at issue in Boughan contained exclusions for loss caused by wet or dry rot and settling, cracking, shrinking, bulging, or expansion of pavements, patios, foundations, walls, floor, roofs, or ceilings. Id. at *3. The plaintiffs argued that the underlying cause of the damage to their home was water seepage through the brick, making the exclusions inapplicable. Id. The Boughan court rejected this argument, explaining

Id. at *4.

The loss that occurred here — infiltration of water due to construction being left only partially completed and poorly done compounded by the contractor's attempt to extract water in a way that left the partially constructed home replete with mold — is not a loss covered by the policy. See Doc. 32-6; Doc. 32-7; Doc. 32-1. Under South Dakota law, a policy must be "examined as a whole," Rumpza v. Donalar Enter., Inc., 1998 SD 79, ¶ 11, 581 N.W.2d 517, 520, and construed "according to the plain meaning of its terms." Biegler v. Am. Family Mut. Ins. Co., 2001 SD 13, ¶ 20, 621 N.W.2d 592, 599. In doing so and mindful that neither party views there to be a question of fact, this Court concludes that the Policy provisions exclude coverage for Plaintiffs' claimed loss.

IV. Conclusion

Therefore, for good cause, it is

ORDERED that Defendant State Farm Fire & Casualty Company's Motion for Summary Judgment (Doc. 27) is granted. It is further

ORDERED that Plaintiffs' Motion for Summary Judgment (Doc. 35) is denied.