ROBERT A. CHAISSON, Judge.
This is an appeal by Matthew and Paula Mason (the "Masons") from a summary judgment in favor of Bankers Insurance Group ("Bankers") dismissing the Masons' suit on grounds that their homeowners' insurance policy does not provide coverage for the damages sustained. For the following reasons, we vacate the judgment and remand the matter to the district court for further proceedings.
The facts alleged in the petition are as follows. The residence at issue is a one story brick veneer house built on a cement slab. The Masons experienced several back-ups of a toilet that caused intrusion of raw sewerage, along with resultant bacterial contamination, into the home.
The Masons submitted a claim to Bankers Insurance Group, their homeowners' insurer. The claim was denied on grounds that the damage was not caused by a covered peril, or was otherwise excluded, and this suit followed. Cross motions for summary judgment were urged. Defendant's motion was granted, while that of plaintiffs was denied. Plaintiffs now appeal both rulings.
The law as to summary judgments involving insurance coverage was well summarized in Smith v. Reliance Ins. Co. of Illinois, 01-888 (La.App. 5 Cir. 1/15/02), 807 So.2d 1010, as follows:
Bankers' first contention is that the underground plumbing system of the Mason's home is not a part of the "Covered Property" for which the Bankers' policy affords coverage. In support of this contention, Bankers argues that the plumbing system is not a "structure attached to the dwelling" because it is not "a structure in which the insureds are capable of inhabiting, i.e., a building." The pertinent provision relied on by Bankers provides:
The plain language meaning of "structure", as found in the Oxford English Dictionary, is "a building or object constructed from several parts" (emphasis added). The plumbing system is clearly an object constructed from several parts and it is necessarily attached to the Masons' dwelling. Although Bankers attempts to read into the policy the requirement that an "attached structure" be habitable, the policy does not state, nor does it imply, that an attached structure must be habitable. If Bankers had intended to limit the definition of "structures attached to the dwelling" to structures that are habitable, it could have expressly done so when it drafted the policy. Words cannot be added, and the terms of the policy cannot be unreasonably constrained, to enlarge the policy's provisions beyond what is reasonably contemplated by the unambiguous terms. Cugini, Ltd. V. Argonaut Great Central Ins. Co., 04-795 (La.App. 5 Cir. 11/30/04), 889 So.2d 1104, 1112.
Bankers additionally attempts to support its contention that the plumbing system is not part of the "Covered Property" based upon policy language contained in a subsection entitled "Exception to c.(6)." The pertinent language provides: "We do not cover loss to the system or appliance from which this water or steam escaped." Bankers appears to interpret this language as a blanket exclusion of any damages to the plumbing system. However, Bankers' reliance on this language to read such a blanket exclusion into the policy is misplaced. This provision, as its title suggests, provides coverage for damages that would otherwise be excluded under the provisions of Subsection A.2.c.(6).
Because Bankers is seeking to avoid coverage, it bears the burden of showing that an exclusion applies. Bankers relies essentially on two clauses in the policy which it claims excludes coverage, Subsection A.2.c.(6) and a provision entitled "Exception to c.(6)," which provide in pertinent part:
(emphasis added).
In order for Bankers to prove that the damage to the plumbing system is excluded from coverage pursuant to subsection A.2.c.(6), Bankers must prove the cause of the damage. Bankers introduced the affidavit of its adjuster, Eddie Horrell. Mr. Horrell inspected only the interior of the Masons' home and did not inspect the plumbing system. Mr. Horrell does not offer any opinion as to the cause of the damage to the plumbing system and clearly he is not in a position to do so. Bankers contends that the affidavit of the Masons' expert, Stephen Roberts, establishes the cause of the damage to the plumbing system. However, although Mr. Roberts' affidavit states that damage has occurred to the plumbing system and describes that damage, Mr. Roberts does not offer any opinion as to the cause of that damage. There is no evidence whatsoever in the record to establish what caused the damage to the plumbing system. Since Bankers has not proven the cause of the damage, there exists a genuine issue of material fact as to whether the damage to the plumbing system itself is excluded from coverage under Subsection A.2.c.(6). Therefore, summary judgment is not appropriate on the issue of whether the damages to the plumbing system itself are excluded from coverage.
If Bankers is able to prove that the cause of the damages to the plumbing system is "wear and tear, marring, deterioration" or "mechanical breakdown, latent defect, inherent vice, or any quality and
Additionally, the Masons contend that the reasonable costs of necessary repairs to their plumbing system are covered under "Coverage E — Additional Coverages". Subsection 2.a of Coverage E states:
However, Subsection 2.b specifically provides that Bankers will only pay for such repairs "if that property is covered under this policy." Therefore, whether or not Bankers is responsible under Coverage E for any of the repairs to the plumbing system itself is necessarily dependent upon a determination of whether damages to the plumbing system are excluded under Subsection A.2.c.(6).
Because of these factual disputes, it was error for the trial court to grant Bankers' Motion for Summary Judgment. Also because of these factual disputes, the denial of plaintiffs' cross motion for summary judgment was proper.
For the foregoing reasons, the judgment of the trial court granting summary judgment in favor of Bankers Insurance Group is hereby vacated, the judgment denying Matthew and Paula Mason's cross motion for summary judgment is affirmed, and the matter is remanded to the district court for further proceedings.
EDWARDS, C.J., concurs.
EDWARDS, C.J., concurs.
I concur in the finding that there appear to be questions of material fact which preclude summary judgment at this stage of the proceedings.