As inches of snow pile up outside of my home, I found it an appropriate time to see if there were any recent cases interpreting insurance policies’ “freezing exclusion.” Ordinarily, property insurance policies preclude coverage from damage resulting from frozen pipes unless the insured has used reasonable care to maintain heat.1
As I discussed in a previous post,2 courts interpreting the policies’ language regarding “reasonable care” to “maintain heat” have concluded that an insured individual would not be excluded from coverage for losses caused by freezing if they took objectively reasonable steps, that is, steps an ordinary person in their position would have taken, to ensure that the temperature in their home remained above freezing.
In a recent New Jersey case,3 a 76-year-old insured left his home in March 2017, to temporarily live in Texas with his son while he underwent replacement of both of his knees and the ensuing extensive rehabilitation. Upon his departure, the insured set his thermostat to 60 degrees, secured most of his windows, and left the gas supply on to ensure heating. At some point prior to his departure, the insured received a flier in the mail stating that his gas provider would be undertaking a project that “could” result in an interruption in gas service.
The insured’s mail was forwarded to his son’s home while he was away. During that time, the insured’s gas was turned off by a contractor in connection with sidewalk repairs. The insured never received express notice that his gas supply was turned off, but he did receive and pay eight monthly gas bills-which because of his payment plan remained relatively constant even though gas was not being supplied to the home.
The insured returned to his home in February 2018, at which time major flooding and water damage was discovered. After inspection, it was clear the damage was caused by radiator pipes freezing and busting as a result of no heat being supplied to the home. The insured filed suit against his homeowners insurer after it denied his claim stating, “since your loss is the direct result of the gas line being locked out and freezing we must take the position that your claim does not fall within the terms of your policy.”
After the insurer filed a motion for summary judgment as to the insured’s breach of contract claim, the court found a jury could find that the insured acted reasonably in maintaining the heat in his home because he left his home with the thermostat at 60 degrees, left spare keys with neighbors, and notified the police he was leaving. Moreover, while the insured received a notice that municipal repairs “could” result in a gas outage, there was nothing to suggest the insured had any reason to know the interruption was certain, or even likely to occur.
If your frozen pipe damage claim has been wrongfully denied, contact your local Merlin Law Group attorney.
1 These same policies also provide coverage for frozen pipe damage if the insured has “shut off the water supply and drain the system and appliances of water.”
3 Titley v. Hanover Ins. Co., 2020 WL 5229387 (D.N.J. Sept. 2, 2020).