{
  "id": 12170370,
  "name": "SIGMOND W. HOLCOMB and wife, LAURA C. HOLCOMB v. UNITED STATES FIRE INSURANCE COMPANY",
  "name_abbreviation": "Holcomb v. United States Fire Insurance Co.",
  "decision_date": "1981-06-16",
  "docket_number": "No. 8017SC878",
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    "judges": [
      "Judges VAUGHN and WELLS concur."
    ],
    "parties": [
      "SIGMOND W. HOLCOMB and wife, LAURA C. HOLCOMB v. UNITED STATES FIRE INSURANCE COMPANY"
    ],
    "opinions": [
      {
        "text": "CLARK, Judge.\nSummary judgment is a drastic measure, and it should be used with caution. Williams v. Power & Light Co., 296 N.C. 400, 250 S.E. 2d 255 (1979). On such motion the court is required to view the record in the light most favorable to the party opposing the motion. Hinson v. Jefferson, 20 N.C. App. 204, 200 S.E. 2d 812 (1973); Brice v. Moore, 30 N.C. App. 365, 226 S.E. 2d 882 (1976). We must accept, therefore, as the trial court was required to do for purposes of this motion, plaintiffs\u2019 forecast of evidence that the collapse of the east basement-wall was caused by the failure of the downspout which dumped approximately three tons of water on a small area of already saturated soil and that it was the weight of this water that caused the east basement wall to collapse and not the shifting of clay or any earth movement.\nBased on these facts, which plaintiffs\u2019 affidavits forecast, and which a jury could believe if presented as evidence at trial, we see two issues of law which if either were resolved against plaintiffs, would warrant entry of summary judgment in defendant\u2019s favor. The first is whether as a matter of law, a gutter downspout is part of the plumbing system of a home so as to bring damage resulting from \u201cdischarge, leakage or overflow\u201d therefrom within Peril 15 of the insurance policy. The second is whether the damage to plaintiffs\u2019 home is expressly and unambiguously ex-eluded from coverage under the policy by language of Additional Exclusions 1 or 2.\nWith regard to the first issue, we must construe the word plumbing in light of the generally accepted rule in this jurisdiction that where the meaning of a word is capable of more than one reasonable interpretation, doubts will be resolved against the insurance company and in favor of the insured. Woods v. Insurance Co., 295 N.C. 500, 246 S.E. 2d 773 (1978). \u201cIf such a word has more than one meaning in its ordinary usage and if the context does not indicate clearly the one intended, it is to be given the meaning most favorable to the policyholder, . . . since the insurance company selected the word for use.\u201d Trust Co. v. Insurance Co., 276 N.C. 348, 354, 172 S.E. 2d 518, 522 (1970). Construction of the term \u201cplumbing system\u201d to include gutter downspouts would clearly favor the insured in this case. The surrounding language does not establish whether the parties intended the term to include downspouts and the record does not indicate that the term was defined in the policy. We must turn, therefore, to the ordinary meaning of the term to determine whether any usage of the term \u201cplumbing system\u201d could encompass the gutters and downspouts on the outside of a building.\nWe believe there can be no doubt that the ordinary meaning of the term \u201cplumbing system\u201d includes the gutters and downspouts designed for the disposal of rainwater. Accord Schumacher v. Lumbermens Mutual Casualty Co., 154 So. 2d 637 (La. App. 1963). We note that the Schumacher court found evidence of the ordinary meaning of the term \u201cplumbing\u201d in the articles of two well-known encyclopedias in general use today. From the Encyclopedia Britannica, the Schumacher court quotes:\n\u201cScope of plumbing\u2014plumbing systems include roof drains, area drains, swimming pools, sprinkling systems, standpipes and hose connections for fire protection, sprinkling systems and hose connections for watering gardens and lawns . . . .\u201d\nId. at 640. The court also quotes the Collier\u2019s Encyclopedia\u2019s similar definition of the scope of plumbing:\n\u201cThe scope of plumbing goes beyond the design and installation of water pipes and drains. The work of the plumber also involves: gas piping for house heating, hot water production, and kitchen stove; hot water or steam heating systems; vacuum and compressed air piping systems; sprinkler and standpipe connections for fire fighting; rainwater roof drain piping; apparatus for individual water supplies (filters and softeners); swimming pools; and the special plumbing equipment used in industrial buildings.\u201d\nId. While we believe this alone establishes plaintiffs\u2019 construction of the term as one reasonable reading of the policy language, we find even more persuasive authority upon which to base our holding.\nThe North Carolina Building Code Council and the North Carolina Department of Insurance, who jointly publish the State Building Code, define plumbing as follows:\n\u201cPlumbing. Plumbing is the practice, materials, and fixtures used in the installation, maintenance, extension, and alteration of all piping, fixtures, appliances, and appurtenances in connection with any of the following: Sanitary drainage or storm drainage facilities, the venting system and the public or private water-supply systems, within or adjacent to any building, structure, or conveyance; also the practice and materials used in the installation, maintenance, extension, or alteration of stormwater, liquid-waste, or sewerage, and water-supply systems of any premises to their connection with any point of public disposal or other acceptable terminal \u201d\nNorth Carolina State Building Code, Vol. II, Plumbing \u00a7 301 at 3-6 (1980) (emphasis added). We note, too, that the Code contains an entire chapter (Ch. XV) devoted to the regulation of storm drains. Chapter XV prescribes the conductors and connections that a plumber may use (\u00a7 1504), specifies the manner of constructing roof drains (\u00a7 1505), and includes tables specifying the size of vertical leaders (defined in \u00a7 301, at 3-5 of the Code as downspouts) and gutters for various roof sizes up to 29,000 square feet (\u00a7\u00a7 1506.1, 1506.3). We believe such extensive treatment of storm drainage systems, in the major source of regulation of buildings in this State (see G.S. 143-135.1 to -143), and in a separate volume of that regulatory Code devoted exclusively to plumbing, renders defendant\u2019s contention \u201cthat \u2018plumbing system\u2019 should not be construed to include gutters or roof drains\u201d without merit. We hold that, as a matter of law, Peril 15 of the insurance policy covered any loss to plaintiff attributable to water discharged from his gutters and downspouts.\nWe turn then to the second issue: whether plaintiffs loss is expressly and unambiguously excluded from coverage. The insuring provisions of the policy extend coverage only, \u201cexcept as otherwise excluded or limited.\u201d Appellee contends that, even if the gutters and downspouts are a part of the plumbing system of plaintiffs\u2019 house, coverage under the policy for plaintiffs\u2019 loss is expressly excluded by the language of the policy. The applicable exclusions provide:\n\u201cThis policy does not insure against loss:\n1. caused by, resulting from, contributed to or aggravated by any of the following:\na. flood, surface water, waves, tidal water or tidal waves, overflow of streams or other bodies of water, or spray from any of the foregoing, all whether driven by wind or not;\nb. water which backs up through sewers or drains; or\nc. water below the surface of the ground including that which exerts pressure on or flows, seeps or leaks through sidewalks, driveways, foundations, walls, basement or other floors or through doors, windows or any other openings in such sidewalks, driveways, foundations, walls or floors.\n2. caused by, resulting from, contributed to or aggravated by any earth movement, including but not limited to earthquake, volcanic eruption, landslide, mudflow, earth sinking, rising or shifting; . . .\u201d\nExclusion 2 can be dismissed out of hand. It is not a legitimate ground for summary judgment. The affidavit of Larry R. Absher, Sr., a licensed professional engineer, was to the effect that he \u201cinspected the soil around the manholes, fence post, and fire hydrants in the general area of Mr. Holcomb\u2019s home and found absolutely no evidence of any earth movement around these objects.\u201d Absher further stated that in his professional opinion \u201cthe failure of the east basement wall was not a result of a gradual shift of clay or earth movement.\u201d These statements were sufficient to create an issue of fact as to whether any earth movement caused or contributed to the collapse of the east basement wall. Summary Judgment is not to be entered on a controverted issue of material fact. Wall v. Flack, 15 N.C. App. 747, 190 S.E. 2d 671 (1972).\nExclusion 1 requires more extended analysis. On its face Exclusion 1 would appear to exclude plaintiffs\u2019 loss from coverage under the policy. Although the affidavits fail to conclusively establish whether the water from the downspout sank into the ground or accumulated on the surface, the language of the Exclusion extends to both \u201csurface water\u201d and \u201cwater below the surface of the ground.\u201d The water would have to fit one of these categories, and it is this fact that disturbes us. Any water discharged from the guttering system would by definition become either surface water or ground water. Would it thereby lose its character as water discharged from a plumbing system? We think not.\nAppellee cites cases decided upon similar fact situations holding that when water discharged from a plumbing system settles upon the surface of or into the ground, that water is brought within the language of Exclusion 1. Krug v. Millers\u2019 Mutual Insurance Ass\u2019n., 209 Kan. 111, 495 P. 2d 949 (1972); Park v. Hanover Insurance Company, 443- S.W. 2d 940 (Tex. Civ. App. 1969). Both cases concerned coverage provisions similar to Peril 15 and exclusions similar to Exclusion 1. We find more appealing, however, the logic of the cases which have held to the contrary, that damage caused by water discharged from a plumbing system covered under provisions similar to Peril 15 does not fall within Exclusion 1. World Fire & Marine Ins. Co. v. Carolina Mills Dist. Co., 169 F. 2d 826 (8th Cir. 1948); Hartford Accident and Indemnity Co. v. Phelps, 294 So. 2d 362 (Fla. App. 1974); King v. Travelers Insurance Company, 84 N.M. 550, 505 P. 2d 1226 (1973).\nAs those cases point out, if we construe the language of Exclusion 1 as appellee would have us to do, then we are faced with one provision that says plaintiffs\u2019 loss is covered; one that says it is not. As has been noted:\n\u201c \u2018If the excepting clause be construed as applying to the state of facts in this case, as appellant contends, an irreconcilable conflict must exist between its meaning and the insuring clause, with the result that the contract must be found to be ambiguous. In that event the contract will be construed favorable to the insured who did not prepare it. The application of the latter rule of construction would lead to striking down the excepting clause ....\u2019\u201d\nKing v. Travelers Insurance Co., 84 N.M. 550, 555, 505 P. 2d 1226, 1231 (1973), quoting, World Fire & Marine Ins. Co. v. Carolina Mills Dist. Co., 169 F. 2d 826 (8th Cir. 1948). While we agree that appellee\u2019s proposed construction of Exclusion 1 creates an apparent contradiction, we do not believe it necessary to strike the exclusion. It is the rule in our State that each clause in a policy of insurance is to be given effect if this can be done by reasonable construction. Woods v. Insurance Co., 295 N.C. 500, 246 S.E. 2d 773 (1978). \u201cThe object of interpretation should not be to find discord in differing clauses, but to harmonize all clauses if possible.\u201d Peirson v. Insurance Co., 249 N.C. 580, 583, 107 S.E. 2d 137, 139 (1959). One reading of the two clauses that would give meaning to both would be to construe Exclusion 1 as excepting from coverage all water damage not expressly and unambiguously insured against in the coverage provisions of the policy. This is the reading that we adopt.\nIn so holding we note that following the language of coverage in Peril 15 and within the same clause the insurer specifically excluded \u201closs to the appliance from which the water or steam escapes\u201d and went on to note that \u201cThis policy does not include loss caused by or resulting from freezing.\u201d Defendant has shown by this language that it was capable of clearly and unambiguously stating circumstances to which the coverage under Peril 15 would not extend. We believe it should have specifically stated any additional exception limiting plaintiffs\u2019 recovery for loss caused by water discharged from within a plumbing system within Peril 15 if it wished to apply the exclusion to losses occurring thereunder. While we believe that broad, general provisions for coverage under a policy may properly be limited by specific exclusions, we have extreme difficulty endorsing broad, general exclusions which seek to render illusory narrow and specific provisions of coverage. This view is supported by the accepted rule of construetion that exceptions from liability are not favored, and will be strictly construed against the insurer. Trust Co. v. Insurance Co., 276 N.C. 348, 172 S.E. 2d 518 (1970); Insurance Co. v. Insurance Co., 269 N.C. 341, 152 S.E. 2d 436 (1967); Thompson v. Accident Association, 209 N.C. 678, 184 S.E. 695 (1936); and Womack v. Insurance Co., 206 N.C. 445, 174 S.E. 313 (1934).\nOur holding then is indentical with the holding of the Florida Court of Appeals in Hartford Accident and Indemnity Co. v. Phelps, 294 So. 2d 362, 363 (Fla. App. 1974):\n\u201cWhen we consider the terminology used in the exclusion clause in pari materia with the affirmative statement of coverage from leaks in the plumbing system, we conclude that the exclusion was intended to relate only to damage from water not emanating from the plumbing system.\u201d\nIt was thus a question for the jury whether the three tons of water dumped on the small area of soil adjacent to the east basement wall was in fact the efficient and proximate cause of the wall\u2019s subsequent collapse. See Wood v. Insurance Co., 245 N.C. 383, 96 S.E. 2d 28 (1957); Harrison v. Insurance Co., 11 N.C. App. 367, 181 S.E. 2d 253 (1971).\nReversed and remanded.\nJudges VAUGHN and WELLS concur.",
        "type": "majority",
        "author": "CLARK, Judge."
      }
    ],
    "attorneys": [
      "Finger, Park and Parker by Daniel J. Park and Raymond A. Parker, II, for plaintiff appellants.",
      "Womble, Carlyle, Sandridge and Rice by Daniel W. Donahue and Keith A. Clinard for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "SIGMOND W. HOLCOMB and wife, LAURA C. HOLCOMB v. UNITED STATES FIRE INSURANCE COMPANY\nNo. 8017SC878\n(Filed 16 June 1981)\n1. Insurance \u00a7 143.1\u2014 all risk insurance \u2014 gutter downspout as part of plumbing system\nA gutter downspout is, as a matter of law, a part of the plumbing system of a home within the meaning of an \u201call risk\u201d policy provision covering loss from accidental discharge or overflow of water from within a plumbing system.\n2. Insurance \u00a7 144.1\u2014 all risk insurance \u2014 loss caused by earth movement \u2014jury question\nIn an action to recover under an \u201call risk\u201d policy for damages resulting from the collapse of a basement wall in plaintiffs home allegedly caused by the failure of a gutter downspout which allowed an abnormally large amount of water to be deposited adjacent to the wall, the evidence on motion for sum mary judgment presented an issue of fact as to whether plaintiffs loss was excluded from coverage under the terms of the policy on the ground that earth movement caused or contributed to the collapse of the wall.\n3. Insurance \u00a7 143.1\u2014 all risk insurance \u2014construction of exclusion for water damage\nWhere a policy of \u201call risk\u201d insurance provided coverage for \u201caccidental discharge, leakage or overflow of water . . . from within a plumbing . . . system\" and excluded coverage for loss caused or contributed to by \u201csurface water\u201d or \u201cwater below the surface of the ground,\" the exclusion was intended to relate only to damage from water not emanating from the plumbing system.\nAPPEAL by plaintiffs from Kivett, Judge. Judgment entered 15 July 1980 in Superior Court, SURRY County. Heard in the Court of Appeals 31 March 1981.\nIn the early morning hours of 3 September 1978, during an unusually heavy rainstorm a portion of the east basement wall of plaintiffs\u2019 home collapsed and fell into the basement causing considerable damage to the structure and to the contents of the basement. At the time of this partial collapse and the resulting damage, the plaintiffs had in effect an \u201call risk\u201d insurance contract with the defendant insurance company, which included the following language under the caption \u201cPerils Insured Against\u201d:\n\u201cCoverage A \u2014 Dwelling . . . against all risks of physical loss to the property covered . . . except as otherwise excluded or limited.\n13. Collapse of buildings or any part thereof, but collapse does not include settling, cracking, shrinkage, bulging or expansion.\n15. Accidental discharge, leakage or overflow of water or steam from within a plumbing, heating or air conditioning system or from within a domestic appliance but excluding loss to the appliance from which the water or steam escapes. This peril does not include loss caused by or resulting from freezing.\u201d\nThis insurance contract between the plaintiffs and the defendant insurance company also included the following language under the heading of \u201cAdditional Exclusions\u201d:\n\u201cThis policy does not insure against loss:\n1. caused by, resulting from, contributed to or aggravated by any of the following:\na. flood, surface water, waves, tidal water or tidal waves, overflow of streams or other bodies of water, or spray from any of the foregoing, all whether driven by wind or not;\nb. water which backs up through sewers or drains; or\nc. water below the surface of the ground including that which exerts pressure on or flows, seeps or leaks through sidewalks, driveways, foundations, walls, basement or other floors or through doors, windows or any other openings in such sidewalks, driveways, foundations, walls or floors.\n2. caused by, resulting from, contributed to or aggravated by any earth movement, including but not limited to earthquake, volcanic eruption, landslide, mudflow, earth sinking, rising or shifting; . . .\u201d\nPlaintiffs brought this action against the defendant insurance company alleging that the damage to plaintiffs\u2019 home was an insured risk under the contract of insurance with the defendant company, contending that the loss was covered under Items 13 and 15 of the \u201cPerils Insured Against\u201d as above set forth, in that the partial collapse of plaintiffs\u2019 east basement wall was caused by an \u201caccidental discharge, leakage or overflow of water . . . from within a plumbing system . . . Specifically, plaintiffs contend that during the unusually heavy rainstorm on the morning of the loss, there occurred a failure of a gutter downspout in the area adjacent to the east basement wall, which allowed an abnormally large amount of water to be deposited adjacent to plaintiffs\u2019 east basement wall, and that the weight of this water resulted in excessive hydrostatic pressure that caused the partial collapse of the plaintiffs\u2019 east basement wall.\nThe defendant insurance company generally denied plaintiffs\u2019 factual allegations, and further alleged the damage to the plaintiffs\u2019 home was caused by \u201cflood or surface waters or water below the surface of the ground including that which exerts pressure on or flows, seeps, or leaks through foundations, walls, basement or other floors or through any other opening in foundations, walls, or floors\u201d or was caused by \u201cearth movement, landslide, mud flow, earth sinking, rising or shifting.\u201d\nThe defendant insurance company then moved for summary judgment and submitted in support thereof affidavits generally setting forth the insurance contract between the parties and supporting the defendant\u2019s contention that the basement wall collapsed as a result of excessive hydrostatic pressure caused by the weight of the clay soil adjacent to the wall when saturated by water.\nThe plaintiffs, in opposition to defendant\u2019s motion for summary judgment, submitted opposing affidavits to the effect that the failure of plaintiffs\u2019 east basement wall was caused by excessive hydrostatic pressure which resulted from the failure of the gutter downspout at the 90\u00b0 elbow connecting the downspout with the underground drainage pipe, and that when the gutter failed it dumped over three tons of water on a small area of previously saturated soil adjacent to the east basement wall resulting in excessive hydrostatic pressure and causing the collapse of the east basement wall. Plaintiffs\u2019 affidavits were to the effect that the failure of the east basement wall was not caused by a gradual shift of clay or any earth movement. Also, plaintiffs\u2019 affidavits show that plumbers normally do guttering work and that installation of that portion of the guttering system consisting of an elbow joint connecting with drainage lines from the elbow joint leading away from the structure of a house or into a sewage system requires a licensed plumber.\nThe court, after hearing arguments, granted defendant\u2019s motion for summary judgment.\nFinger, Park and Parker by Daniel J. Park and Raymond A. Parker, II, for plaintiff appellants.\nWomble, Carlyle, Sandridge and Rice by Daniel W. Donahue and Keith A. Clinard for defendant appellee."
  },
  "file_name": "0474-01",
  "first_page_order": 502,
  "last_page_order": 511
}
