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Poore v. Main Street America Assurance Co.

United States District Court, W.D. Virginia, Abingdon Division

November 28, 2018

CHAD POORE, ET AL., Plaintiffs,

          David L. Scyphers, Scyphers & Austin, P.C., Abingdon, Virginia, for Plaintiffs;

          Thomas S. Garrett and Robert F. Friedman, Harman, Claytor, Corrigan & Wellman, Richmond, Virginia, for Defendants.



         In this action under Virginia law, the plaintiffs seek recovery under a homeowners insurance policy due to mold that occurred because of water infiltration into their house over time from a leaky gutter. The insurance company denies coverage on the ground, among others, that the policy does not insure for loss caused by mold. The parties have filed cross motions for summary judgment, which have been fully briefed and orally argued and are ripe for decision. For the reasons stated, I find that there is no coverage under the policy.


         The following facts from the summary judgment record are uncontested, at least for the purposes of the present motions.

         Defendant NGM Insurance Company (the Insurance Company) issued a homeowners insurance policy (the Policy) to plaintiff Chad Poore for residential property located in Washington County, Virginia, owned by Poore and his wife Becky (the Poores), for a policy period from October 1, 2015, through October 1, 2016.[1] On December 30, 2016, the Poores notified the Insurance Company of a mold claim at their home. Their claim was not approved by the Insurance Company. The mold produced health problems for the family who, on the advice of a physician, abandoned the residence as uninhabitable and its contents as unsalvageable. The property was ultimately foreclosed upon by a lender.

         On January 26, 2018, the Poores filed suit in state court against the Insurance Company, in which it was asserted that in December of 2016 they had discovered “that there had been a leak in the house which had caused black mold, which was causing them health problems.” Compl. ¶ 6, ECF No. 1-2. They sought damages under the Policy for the value of the home, the personal property in the home, and the loss of use of the property. The suit was timely removed by the defendants to this court pursuant to 28 U.S.C. § 1441(b), based upon subject-matter jurisdiction by virtue of diversity of citizenship and amount in controversy. 28 U.S.C. § 1332(a)(1). The Insurance Company filed a Counterclaim seeking a declaratory judgment that there is no coverage under the terms of the Policy.

         Each side has retained an expert. The Poores' expert opines that there was a failure of the sealant of the end cap on a rain gutter that abutted a fireplace chimney chase at the rear of the home. This failure caused water to leak from the gutter and infiltrate the sheathing of the chimney chase, making its way down to the home's crawl space and producing the mold. Defs.' Mem. Supp. Mot. Summ. J. Ex. 6, Mitchell Dep. 25, 28, 32, 35, 36, ECF No. 16-6. The Insurance Company's expert agrees. Id. Ex.7, Report of Findings 7, ECF No. 16-7.

         Following discovery, the parties have filed cross motions for summary judgment. The Poores explain that while there may have been minor repairable damage from the water infiltration, that damage is not the basis for their claim. Rather, “[t]he damages which led to this claim were the black mold caused by the leak.” Pls.' Mot. Summ. J. ¶ 12, ECF No. 14. The Poores contend that because the Policy provides coverage for water damage they are entitled to payment. The Insurance Company argues that there is no coverage for the loss under the plain terms of the Policy and based upon the undisputed facts.[2]


         Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Summary judgment is not a “disfavored procedural shortcut, ” but an important mechanism for disposing of “claims and defenses [that] have no factual basis.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). It is the “affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial.” Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993) (internal quotation marks and citations omitted).

         The parties agree that Virginia law governs the substantive issues in this case. The Supreme Court of Virginia has established the following relevant legal principles:

In general, courts interpret insurance policies, like other contracts, in accordance with the intention of the parties gleaned from the words they have used in the document. Each component of an insurance contract should be considered and construed together and seemingly conflicting provisions harmonized when that can be reasonably done, so as to effectuate the intention of the parties as expressed therein. When a policy does not define a given term, we give the word its ordinary and accepted meaning.
With regard to the exclusions in the . . . coverage, our consideration is governed by well-settled principles. Exclusionary language in an insurance policy will be construed most strongly against the insurer and the burden is upon the insurer to prove that an exclusion applies. Reasonable exclusions not in conflict with statute will be enforced, but it is incumbent upon the insurer to employ exclusionary language that is clear and unambiguous.

Transcon. Ins. Co. v. RBMW, Inc., 551 S.E.2d 313, 318 (Va. 2001) (internal quotation marks, citations and alteration omitted). Generally, “[t]he interpretation of a contract presents a question of law.” City of Chesapeake v. States Self-Insurers Risk Retention Grp., Inc., 628 S.E.2d 539, 541 (Va. 2006). Where a contract “is complete on its face, [and] is plain and unambiguous in its terms, the court is not at liberty to search for its meaning beyond the instrument itself.” Monticello Ins. Co. v. Baecher, 477 S.E.2d 490, 491 (Va. 1996) (internal quotation marks and citation omitted).

         The Policy provided in pertinent part as follows:


         * * *

         COVERAGE D - Loss of Use

         The limit of liability for Coverage D is the total limit for all the coverages that follow:

1. If a loss covered under this Section makes that part of the “residence premises” where you reside not fit to live in, we cover, at your choice, either of the following. However, if the “residence premises” is not your principal place of residence, we will not provide the option under paragraph b. below.
a. Additional Living Expense, meaning any necessary increase in living expense incurred by you so that your household can maintain its normal standard of living; or b. Fair Rental Value, meaning the fair rental value of that part of the “residence premises” where you reside less any expenses that do not continue while the premises is not fit to live in.
Payment under a. of b. will be for the shortest time required to repair or replace the damage or, if you permanently relocate, the shortest time required for your household to settle elsewhere.
* * *
We insure against risk of direct loss to property described in Coverages A and B only if that loss is a physical loss to property. We do not insure, however, for loss;
1. Involving collapse, other than as provided in Additional Coverage B.;
2. Caused by:
* * *
e. Any of the following:
(1) Wear and tear, marring, deterioration;
(2) Inherent vice, latent defect, mechanical breakdown;
(3) Smog, rust or other corrosion, mold, wet or dry rot;
* * *
If any of these cause water damage not otherwise excluded, from a plumbing, heating, air conditioning or automatic fire protective sprinkler system or household appliance, we cover loss caused by the water including the cost of tearing out and replacing any part of a building necessary to repair the system or appliance. ...

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