Snow is falling all over the United States. So much that roofs are falling from the weight of snow and ice. Can you imagine the policyholder outrage if the insurance company’s engineer says the roof was designed wrong and coverage is denied on that basis?

This was the scenario in Driscoll v. Providence Mut. Fire Ins. Co., 69 Mass. App. Ct. 341 (Mass. App. Ct. 2007), where the judge found that "both faulty design and the weight of snow and ice caused the damage." The insurance company denied the loss, citing, in part, the following standard exclusion:

Negligent Work: Faulty, inadequate or defective:

(1) Planning, zoning, development, surveying, siting;

(2) Design, specifications, workmanship, repair, construction, renovation, remodeling, grading, compaction;

(3) Materials used in repair, construction, renovation or modeling; or

(4) Maintenance;
of part or all of any property on or off the described premises.

The important point for coverage counsel and policyholders to remember is that this is a B.3 and not a B.1 exclusion. The saving language for policyholders is similar to the "Lazaraus Clauses" I wrote about in Water Loss Denied? Ensuing Loss Provisions May Provide Coverage. The important language is the following:

We will not pay for loss or damage caused by or resulting from any of the following. But if loss or damage by a Covered Cause of Loss results, we will pay for that resulting loss or damage.

The Driscoll Court got it right when it noted:

Here, the physical damage caused by the weight of snow and ice is nowhere excluded…

Furthermore, no other exclusions apply. This includes the exclusion for settling, cracking, shrinking, or expansion under paragraph B.2.k.(4)…which the judge specifically and correctly found did not occur, and the exclusion for faulty workmanship or construction under paragraph B.3.c… The latter exclusion does not apply because it is preceded by the following language: "We will not pay for loss or damage caused by or resulting from any of the following. But if loss or damage by a Covered Cause of Loss results, we will pay for that resulting loss or damage." Covered causes are, according to paragraph A.3. discussed above, all causes except those excluded in section B (or limited by paragraph A.4.). The judge found that both faulty design and the weight of snow and ice caused the damage. The latter is a covered cause of loss which is not excluded, and therefore the faulty design exclusion does not bar coverage.

So, let it snow, let it snow, let it snow. And, don’t let the insurer deny your snowed roof when it is hanging low.

  • Craig Stanovich

    Clearly, the key part of the Driscoll case is that the exclusion cited by the insurer did NOT have the anti-concurrent causation (ACC) preamble. Thus, even though a covered cause (weight of snow) combined with an excluded cause (faulty workmanship), the coverage still applies.

    This is distilled in the Court’s citation of Couch “unless there is an express polcy provision to the contrary, the requirement that the peril insured against be the proximate cause of loss does not require that it be the sole cause of the loss” Had the ACC preamble to the exclusion applied, then it is likely that the weight of the snow would have to have been the sole proximate cause of loss – as the ACC wording is expressly intended to exclude coverage for damage caused, either in sequence or concurrently, by the excluded cause.

    The recent (October, 2009) Mississippi Supreme Court case of Corban v. USAA examines the ACC clause in depth.