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2010AP16 American Family Mut. Ins. Co. v. Schmitz

By: WISCONSIN LAW JOURNAL STAFF//October 20, 2010//

2010AP16 American Family Mut. Ins. Co. v. Schmitz

By: WISCONSIN LAW JOURNAL STAFF//October 20, 2010//

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Insurance
Homeowner policies; surface water exclusion

Once rain strikes the ground, it becomes surface water within the meaning of an insurance policies exclusion of coverage for water damage.

“Lee R. Russ & Thomas F. Segalla, 11 Couch on Insurance § 153:50 (3d 2010), offers a useful distinction between surface water and rain water: [S]urface water is distinguished from rain by its character as water on the ground. Rain, on the other hand, has been defined as ‘water falling from the sky.’ [D]amage from water flowing on the earth onto the insured’s property, or into the insured’s building, will generally constitute damage from surface water. Damage from water naturally falling from the sky onto the insured’s property, or into the insured’s building, will generally constitute damage from rain. (Footnotes omitted).”

“Using the distinction in Couch on Insurance, the water that flowed onto Schmitz’s property clearly was surface water ‘flowing on the earth,’ not rain water ‘falling from the sky.’ See id. Therefore, we hold that once the rain fell to the ground, it became surface water that was covered by American Family’s water damage exclusion.”

Reversed.

Recommended for publication in the official reports.

2010AP16 American Family Mut. Ins. Co. v. Schmitz

Dist. II, Waukesha County, Bohren, J., Brown, J.

Attorneys: For Appellant: Burrell, Robert C., Milwaukee; Cronin, Joshua B., Milwaukee; For Respondent: Riordan, Christopher P., Milwaukee]

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