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AUSE 2021-66403
EAN AYIHURA, § N THE ISTRICT OURT
LAINTIFF, §
VS. §
281ST UDICIAL ISTRICT
OMEOWNERS OF MERICA MGA, NC AND §
OMEOWNERS OF MERICA
NSURANCE OMPANY NC.
EFENDANTS. § ARRIS OUNTY EXAS
LAINTIFF S ESPONSE IN PPOSITION TO
EFENDANTS OTION FOR ARTIAL UMMARY UDGMENT
O THE ONORABLE UDGE OF AID OURT:
Jean Kayihura (“Plaintiff”) respectfully shows the following in response to
Defendants’ Motion for Partial Summary Judgment.
I.
The policy’s plain language provides coverage for all damage which results
as a direct and natural consequence of loss caused by discharge, overflow,
or leaking of a plumbing system or appliance caused by freezing of the
system or appliance.
In contrast to provisions providing coverage for “direct physical loss” which
require proximate causation, a policy provision providing coverage for loss or
damage caused by a named peril provides coverage for “all loss or damage
which results as a direct and natural consequence of” that named peril.
Travelers Indem. Co. v. Jarrett, 369 S.W.2d 653, 655 (Tex. App. – Waco 1963,
no writ) quoting 11 Couch, Insurance 2d, 42.355, 42.357. The policy
The policy is attached as Plaintiff’s Exhibit 1 and incorporated by reference.
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includes an exception to the exclusion for freeze which does not limit coverage
to “direct physical loss.” Rather, the exception provides coverage for all “loss”
[…] [c]aused by […] [f]reezing of a plumbing, heating, air conditioning or
automatic fire protective sprinkler system or of a household appliance, or by
discharge, leakage or overflow from within the system or appliance caused by
freezing.” See Exhibit 1, at HOAMGA 0033.
2. Because coverage under the exception to the freeze exclusion applies to all loss
caused by discharge, overflow, and leaks from within the plumbing system or
appliance caused by freezing of the system or appliance, “all natural
consequences of the named peril” are covered. De Laurentis v. United Servs.
Auto. Ass’n, 162 S.W.3d 714, 723 (Tex. App. – Houston [14 th Dist.] 2005, pet.
denied). The water damage to Plaintiff’s home is therefore covered as a natural
consequence of the discharge, overflow, and leaking of water from the within
the plumbing system or appliance “caused by freezing.” And, because the water
damage to Plaintiff’s home is a natural consequence of the named peril, the
water damage is covered as damage under the freeze endorsement rather than
as a peril under the water damage endorsement. De Laurentis v. United Servs.
Auto. Ass’n, 162 S.W.3d 714, 723 (Tex. App. – Houston [14 th Dist.] 2005, pet.
denied) (holding that exclusion of mold from coverage did not apply to mold
damage which was a natural consequence of “physical loss” caused by water).
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II.
The concurrent causation doctrine is inapplicable.
3. Defendants’ reliance on the concurrent causation doctrine to limit coverage
under the water damage endorsement is misplaced. The concurrent causation
doctrine applies only if an excluded peril combines with the covered peril to
cause the loss. Utica Nat’l Ins. Co. of Tex. v. Am. Indem. Co., 141 S.W.3d 198,
204 (Tex. 2004). The discharge, overflow, or leaks from within the plumbing
system or appliance caused by freezing of the system or appliance was the
independent and separate cause of the water damage to Plaintiff’s home.
Because the covered peril did not combine with any excluded peril to cause the
loss, the concurrent causation doctrine does not apply. Utica Nat’l Ins. Co. of
Tex. v. Am. Indem. Co., 141 S.W.3d 198, 204 (Tex. 2004).
III.
Conclusion
4. Plaintiff therefore respectfully requests that this Court deny Defendants’
motion for partial summary judgment.
Respectfully submitted,
FRIESELL WESTERLAGE, PLLC
By: /s/ Aristotelis Westerlage
Aristotelis Westerlage
State Bar No. 24088622
Email: telly@fwlawtexas.com
By: /s/ John Riley Friesell
John Riley Friesell
State Bar No. 90001413
Email: john@fwlawtexas.com
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One City Centre
1021 Main Street, Suite 1250
Houston, Texas 77002
Telephone: 713-236-9177
Fax: 888-749-3831
Attorneys for Plaintiff
Jean Kayihura
Certificate of Service
I certify that a true and correct copy of the above Plaintiff’s response in
opposition to Defendants’ motion for partial summary judgment has been forwarded
via electronic filing and/or facsimile on June 15, 2022, to counsel for Defendants:
Michael S. Wilson, and
Adrienne L. Barclay
Perkins Law Group, P.L.L.C
One Far West Plaza, Suite 200
3410 Far West Boulevard
Austin, Texas 78731
(512)-551-9895 facsimile
/s/ Aristotelis Westerlage
Aristotelis Westerlage
4
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AUSE 2021-66403 EAN AYIHURA, § N THE ISTRICT OURT LAINTIFF, § VS. § 281ST UDICIAL ISTRICT OMEOWNERS OF MERICA MGA, NC AND § OMEOWNERS OF MERICA NSURANCE OMPANY NC. EFENDANTS. § ARRIS OUNTY EXAS LAINTIFF S ESPONSE IN PPOSITION TO EFENDANTS OTION FOR ARTIAL UMMARY UDGMENT O THE ONORABLE UDGE OF AID OURT: Jean Kayihura (“Plaintiff”) respectfully shows the following in response to Defendants’ Motion for Partial Summary Judgment. I. The policy’s plain language provides coverage for all damage which results as a direct and natural consequence of loss caused by discharge, overflow, or leaking of a plumbing system or appliance caused by freezing of the system or appliance. In contrast to provisions providing coverage for “direct physical loss” which require proximate causation, a policy provision providing coverage for loss or damage caused by a named peril provides coverage for “all loss or damage which results as a direct and natural consequence of” that named peril. Travelers Indem. Co. v. Jarrett, 369 S.W.2d 653, 655 (Tex. App. – Waco 1963, no writ) quoting 11 Couch, Insurance 2d, 42.355, 42.357. The policy The policy is attached as Plaintiff’s Exhibit 1 and incorporated by reference. 1 includes an exception to the exclusion for freeze which does not limit coverage to “direct physical loss.” Rather, the exception provides coverage for all “loss” […] [c]aused by […] [f]reezing of a plumbing, heating, air conditioning or automatic fire protective sprinkler system or of a household appliance, or by discharge, leakage or overflow from within the system or appliance caused by freezing.” See Exhibit 1, at HOAMGA 0033. 2. Because coverage under the exception to the freeze exclusion applies to all loss caused by discharge, overflow, and leaks from within the plumbing system or appliance caused by freezing of the system or appliance, “all natural consequences of the named peril” are covered. De Laurentis v. United Servs. Auto. Ass’n, 162 S.W.3d 714, 723 (Tex. App. – Houston [14 th Dist.] 2005, pet. denied). The water damage to Plaintiff’s home is therefore covered as a natural consequence of the discharge, overflow, and leaking of water from the within the plumbing system or appliance “caused by freezing.” And, because the water damage to Plaintiff’s home is a natural consequence of the named peril, the water damage is covered as damage under the freeze endorsement rather than as a peril under the water damage endorsement. De Laurentis v. United Servs. Auto. Ass’n, 162 S.W.3d 714, 723 (Tex. App. – Houston [14 th Dist.] 2005, pet. denied) (holding that exclusion of mold from coverage did not apply to mold damage which was a natural consequence of “physical loss” caused by water). 2 II. The concurrent causation doctrine is inapplicable. 3. Defendants’ reliance on the concurrent causation doctrine to limit coverage under the water damage endorsement is misplaced. The concurrent causation doctrine applies only if an excluded peril combines with the covered peril to cause the loss. Utica Nat’l Ins. Co. of Tex. v. Am. Indem. Co., 141 S.W.3d 198, 204 (Tex. 2004). The discharge, overflow, or leaks from within the plumbing system or appliance caused by freezing of the system or appliance was the independent and separate cause of the water damage to Plaintiff’s home. Because the covered peril did not combine with any excluded peril to cause the loss, the concurrent causation doctrine does not apply. Utica Nat’l Ins. Co. of Tex. v. Am. Indem. Co., 141 S.W.3d 198, 204 (Tex. 2004). III. Conclusion 4. Plaintiff therefore respectfully requests that this Court deny Defendants’ motion for partial summary judgment. Respectfully submitted, FRIESELL WESTERLAGE, PLLC By: /s/ Aristotelis Westerlage Aristotelis Westerlage State Bar No. 24088622 Email: telly@fwlawtexas.com By: /s/ John Riley Friesell John Riley Friesell State Bar No. 90001413 Email: john@fwlawtexas.com 3 One City Centre 1021 Main Street, Suite 1250 Houston, Texas 77002 Telephone: 713-236-9177 Fax: 888-749-3831 Attorneys for Plaintiff Jean Kayihura Certificate of Service I certify that a true and correct copy of the above Plaintiff’s response in opposition to Defendants’ motion for partial summary judgment has been forwarded via electronic filing and/or facsimile on June 15, 2022, to counsel for Defendants: Michael S. Wilson, and Adrienne L. Barclay Perkins Law Group, P.L.L.C One Far West Plaza, Suite 200 3410 Far West Boulevard Austin, Texas 78731 (512)-551-9895 facsimile /s/ Aristotelis Westerlage Aristotelis Westerlage 4