In March, I posted a blog on the Hicks v. American Integrity Insurance Company opinion,1 in which a Florida court ruled that policy language stating: “we do not insure…for loss…caused by…constant or repeated seepage or leakage of water…over a period of 14 or more days,” did not preclude coverage for damage caused during the first 13 days of a water leak.

Now, in the case Whitely v. American Integrity Insurance Company,2 the Florida appellate court has ruled in accordance with the court in Hicks and rejected the carrier’s interpretation of the 14-day exclusion in the policy. In Whitely, the insureds, Larry and Sherri Whitely (“the Whitelys”) filed a claim with their insurance company, American Integrity Insurance Company (“American Integrity”) in November of 2012 for water damage that occurred sometime between October 2012 and November 2012. American Integrity inspected the property and determined that the property was exposed to the damage-causing water for approximately 30 days.

American Integrity denied the Whitelys’ claim, citing the policy exclusion that stated, “we do not insure…loss…caused by…constant or repeated seepage or leakage of water…over a period of 14 or more days from within a plumbing…system.”

The Whitelys sued, stating that the policy language was ambiguous since it did not clarify whether the damage that occurred within the first 13 days was covered. The trial court concurred with American Integrity, which argued that the language was unambiguous.

The Whitelys appealed.

The appellate court reversed and remanded to the trial court for additional proceedings, finding that the Whitelys had shown that the property was exposed to the water for more than 14 days and that American Integrity failed to meet its burden of establishing that the loss did not occur within the first 14 days. Therefore, since the damage may have occurred before the 14th day, the policy exclusion may not apply, and a determination of when the damage occurred is a question for a jury to decide.
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1 Hicks v. American Integrity Ins. Co., 241 So.3d 925 (Fla. 5th DCA 2018).
2 Whitely v. American Integrity Ins. Co., No. 5D16-3719 (Fla. 5th DCA June 29, 2018).

  • While probably a majority of property forms include a “repeated seepage or leakage” exclusion, it may be worthwhile to note that the current unendorsed ISO homeowners policies removed that exclusion in 1991 in most states. ISO HO forms currently rely on the Neglect exclusion so that ‘hidden’ water damage is covered as long as it is reported promptly when discovered.