United States District Court, D. Colorado
CHATEAU VILLAGE NORTH CONDOMINIUM ASSOCIATION, a Colorado corporation, Plaintiff,
AMERICAN FAMILY MUTUAL INSURANCE COMPANY, a Wisconsin corporation, Defendant.
PHILIP A. BRIMMER UNITED STATES DISTRICT JUDGE.
This matter is before the Court on plaintiff’s Partial Motion for Judgment as a Matter of Law Pursuant to F.R.C.P. 56 [Docket No. 51] filed on July 20, 2015 by Chateau Village North Condominium Association (the “Association”) and on defendant’s Motion for Summary Judgment [Docket No. 52] filed on July 20, 2015 by American Family Mutual Insurance Company (“American Family”). This Court has jurisdiction pursuant to 28 U.S.C. § 1332.
This case arises out of an insurance coverage dispute. The Association is responsible for the operation, maintenance, preservation, and control of the Chateau Village North Condominiums (“Chateau Village Condos”) in Boulder, Colorado. Docket No. 52 at 2, Statement of Undisputed Material Facts (“SUMF”) 1. The Association purchased a commercial property and liability insurance policy (the “policy”) from defendant American Family, which became effective on February 1, 2013. Id., SUMF 2. The policy contains an exclusions section at Section I.B. Id. at 2-3, SUMF 3. The exclusions section is prefaced with an anti-concurrent causation clause (“ACC”):
1. We will not pay for loss or damage caused directly or indirectly by any of the following. Such loss or damage is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss. These exclusions apply whether or not the loss event results in widespread damage or affects a substantial area.
Id.; Docket No. 52-1 at 2. Section I.B.1.g. of the exclusions section excludes coverage for the following:
(1) Flood, surface water, waves, tides, tidal waves, overflow of any body of water, or their spray, all whether driven by wind or not;
(2) Mudslide or mudflow;
(3) Water that backs up or overflows from a sewer, drain or sump; or
(4) Water under the ground surface pressing on, or flowing or seeping through:
(a) Foundations, walls, floors or paved surfaces;
(b) Basements, whether paved or not; or
(c) Doors, windows or other openings.But if Water, as described in Paragraphs (1) through (4) results in fire, explosion or sprinkler leakage, we will pay for the loss or damage caused by that fire, explosion or sprinkler leakage.
Docket No. 52 at 3, SUMF 4; Docket No. 52-1 at 3.
The policy includes a Condominium Enhancement Endorsement (the “endorsement”). See Docket No. 52 at 3-4, SUMF 5. At Section XVI, the endorsement adds coverage for sewer backup and sump overflow and replaces the water exclusion at Section I.B.1.g of the policy with language that omits any reference to sewer, drain, or sump backup. Id., SUMFs 5-6. Section XVI of the endorsement reads:
XVI. Sewer Back-Up and Sump Overflow
The following is added to paragraph A.5. Additional Coverages:
Sewer Back-Up and Sump Overflow
1. We will pay for direct physical loss or damage to Buildings or Business Personal Property, covered under Section I-Property, caused by or resulting from:
A. Water which backs up through or overflows from a sewer or drain; or
B. Water which overflows from a sump, even if the overflow results from mechanical breakdown of a sump pump or its related equipment.
However, with respect to paragraph XVI.1.b above, we will not pay the cost of repairing or replacing a sump pump or its related equipment in ...