I mentioned the 60 days out of curiosity if the vacancy exclusion would apply – however, the property had only been vacant for about a week when she returned and then turned the water back on and flooded the place. The problem is that we cannot prove it was she. We know 99%, but no conclusive proof.

I think that the home was only actually vacant for about a week when the loss happened.

The problem is that we have no conclusive evidence it was she that did it. Also, attached endorsement FE-2432 changes the Section I – Losses not insured.

PART 2: It did not seem plausible that the lady would go under the house and know where to turn it on. However, the client said that the tenant had lived there for 15 years and knew the house like the back of her hand.

The tenant admitted to the client that she had used a spare key to enter the home again just to grab something that she had left behind. Then when the client went by the home about a week later she found the water on and house flooded.

We are kind of torn as to whether to file it for vandalism (She does not have proof it was the tenant, but strong circumstantial evidence) or if we should just file it as a water damage claim.

For clarification:

It was the kitchen sink faucet that was turned on in the kitchen and flooded about 1/5th of the home.

However, the reason the homeowner had turned the water off is that there was a very small pinhole leak in the bathroom under the sink. She turned the water off to the home until she could get a plumber over to repair it. So, when the ex-tenant turned the water back on, the leak in the bathroom on the other side of the house also started leaking again. It did not do nearly as much damage as the kitchen sink overflow though. This leak was pretty much confined to the bathroom and that water ran towards an exterior wall and out of the home.

Hawaii Suscriber

For the sake of clarity, you have a former tenant who entered the property after being removed who turned on the kitchen faucet and let it run. The water had been turned off under the house, so the tenant or someone had to have turned it back on. While at the dwelling the tenant, or someone else at another time, turned on the kitchen faucet before leaving and left it running, which flooded the home.

When the water was turned back on a pinhole leak in the bathroom under the sink started leaking again as well, also causing damage but not as much as the water from the faucet.

Your question concerns whether or not the kitchen faucet being left on is excluded under the policy language for "continuous or repeated seepage or leakage of water or steam from a: "heating, a/c or automatic fire protective sprinkler system, household appliance or plumbing system, including…other plumbing fixture…"

You are also asking about coverage for vandalism – the policy excludes vandalism if the "dwelling has been vacant for more than 30 consecutive days immediately before the loss" which is not the situation in your case.

There is a difference between leakage and seepage and leaving the faucet running. Merriam Webster online defines leakage as: the act or process or an instance of leaking. Leak is defined as: a crack or hole that usually by mistake admits or lets escape; to let a substance or light in or out through an opening. Seepage is defined as: the process of seeping: OOZING. Seep is defined as: to flow or pass slowly through fine pores or small openings: OOZE; to enter or penetrate slowly. Neither of these describes the turning on of a faucet and leaving it running or forgetting to turn it off.

In Jamison v. Depositors Ins. Co., 2016 U.S. Dist. LEXIS 91841, which involved a water leak, the court found similar definitions of leakage and seepage and stated that " …the policy clearly contemplates that not everything someone might colloquially describe as a 'leak' from the plumbing system is excluded as 'seepage or leakage' within the meaning of the policy." Using these definitions the court concluded that a " a trier of fact could find from the evidence—particularly given the volume of water involved—that there was an 'accidental overflow or discharge of water' from the plumbing system greater than mere 'seepage or leakage' within the meaning of the exclusion."

In Primm v. State Farm Fire & Casualty Co., 426 So. 2d 356 which also involves a water leak, the court stated the following: The court found that the terms "leakage or seepage" and "sudden and accidental" were contradictory. The first connoted a gradual and slow moving event while the latter connoted an abrupt or unexpected event from an unknown cause or an unusual result from a known cause. The court found that such an ambiguity inured to the benefit of the policy holders. Thus, the damage was not excluded by the policy, and coverage was afforded.

These and other courts view seepage and leakage within their ordinary meeting, and the ordinary meaning of leakage and seepage is not the result of turning on a faucet.

The turning on of the faucet did not result in leakage or seepage, so there should be coverage for the water damage from the faucet being on. The leak from the bathroom however would be excluded due to seepage/leakage.

Now, what you need to determine is whether or not the tenant turned on the faucet intentionally and whether or not that has any bearing on coverage. Your policy is open perils; there is no exclusion for the water being left on either accidentally or intentionally. Intentional acts are only excluded if they are acts by the insured or someone covered under the policy and the purpose of the act was to obtain insurance benefits, which is not the case here. The tenant does not qualify as an insured, so the exclusion for intentional acts does not apply.

As we already discussed, the exclusion for vandalism applies only if the property has been vacant for thirty days before the loss occurred, which again is not the case here.

In sum, there is coverage for the damage from the kitchen faucet being left on and damaging the property. The damage from the leak in the bathroom however would not be covered by the continuous leak/seepage exclusion.