In Widdows v. State Farm Florida Ins. Co., No, 5D05-1052, 2006 WL 247905 (Fla. App. Feb.3, 2006), a Florida appeals court ruled that an abnormality in a pipe constituted accidental direct physical loss.

 

James Widdows called a plumber to fix his toilet, which was backed-up. The plumber said that the pipe connecting the toilet to the sewer pipe had become backpitched, impeding the flow of water. The plumber thought the possible causes for the problem could be settlement, erosion (but not erosion caused by a leak in the plumbing system), or sinkhole; he did not believe the problem was caused by construction defect.

 

Widdows' insurer, State Farm, denied coverage. At trial, the court dismissed Widdows' case, stating that no evidence of damage from the obstructed toilet existed, so there was no physical loss to property, and that the earth movement exclusion applied.

 

The appellate court found otherwise, stating “As to the issue of whether evidence was adduced of a 'physical loss,' we conclude that the abnormality in the pipe itself was such a 'loss.'” The court did not deem it necessary for Widdows to “establish any resulting damage from this condition.”

 

Regarding the earth movement exclusion, the court said that it was State Farm's burden to prove that the exclusion applied. Other causes for the backpitched pipe were offered, and not all of them would be excluded by the earth movement exclusion. Thus, the court ruled that that the trial court's dismissal was premature.