An earlier case from the Supreme Court of Colorado, Heller v. Fire Insurance Exchange, 800 P.2d 1006 (Colo. 1990), had confronted a similar issue concerning damage caused by surface water. In that case, the justices defined "surface water" as "water from melted snow, falling rain, or rising springs, lying or flowing naturally on the earth's surface, not gathering into or forming any more definite body of water than a mere bog, swamp, slough, or marsh, and lost by percolation, evaporation or natural drainage." Surface water ceased to be surface water when it flowed through man-made trenches that "diverted the regular path of the melted snow over a natural ridge" before it caused damage to the insured's home.  

Martinez argued the rainwater had flowed off his roof and into the window wells, and therefore could not be considered "surface water" because it never touched the ground. The court pointed out that the "ground," according to Webster's Dictionary, meant "the surface on which man stands, moves, and dwells and on which objects naturally rest" as opposed to air or water. Though the roof was not the literal surface of the earth, it was still "a surface upon which objects naturally rest and [was] readily contrasted with the air and bodies of water." Therefore, the water that had pooled on the roof of Martinez's house was considered "surface water." 

The Window Well Changed Nothing 

Martinez argued that precipitation in the form of hail was outside the scope of the Heller decision. He also claimed that, similar to Heller, the rain had collected on top of the hail in the window well and changed the nature of the rain so it was no longer surface water. The judges were skeptical of both assertions.  

Contrary to Martinez's argument, Heller was not an exhaustive list of what precipitation is or is not surface water. The judges also pointed out that the definitions of 'precipitation' and 'hail' were synchronous with one another: the definition of precipitation specifically referenced hail, and the definition of hail specifically stated hail was precipitation. Nothing in the Heller decision or in Martinez's arguments gave the judges a reason to treat hail differently than any other form of precipitation. 

The judges also rejected the idea that the rain and hail collecting in the window well had somehow transformed into something other than surface water as the man-made trenches had done in Heller. The trenches were specifically designed to interrupt the natural flow of water across the ground and force it to flow in a specific direction. The trenches in Heller had transformed what had been surface water into something else because the trenches "changed the character of the water from a diffuse state to a more definite body." 

The lower court's grant of summary judgment in favor of American Family was affirmed. 

Editor's Note: The insured in this case argued that water wasn't surface water if it did not come into direct contact with the surface of the earth. The court said the insured took "surface water" too literally. Water can collect on surfaces other than the physical surface of the earth and be surface water. Precipitation that isn't water, such as snow, hail, and sleet, can collect on a surface and be considered surface water when it melts. However, as Heller shows, water that falls but is directed into a path is not surface water. Surface water is often complex and attention to details of where the water fell and what it did is important. Water falling directly into a window well is not surface water. 

Read More: 

Window Wells and Surface Water

Summary Judgment Reversed Due to Dispute Over Source of Water

Falling Rain Differs from Surface Water for Dwelling Policy