Insurer Must Defend Faulty Workmanship Claims

Tred R. Eyerly | Insurance Law Hawaii

   The court determined that the insurer improperly denied a defense for construction defect claims made against the insured. Amerisure Mut. Ins. Co. v. McMillin Tex. Homes, 2022 U.S. Dist. LEIS 40363 (W.D. Texas March 8, 2022). 

    McMillin was a developer, general contractor and home seller. It constructed multiple homes in various communities in the San Antonio area. After the homes were completed, homeowners observed defects in the artificial stucco exterior finish. After claims were lodged against McMillin, the various claims were tendered to Amerisure. Amerisure filed for declaratory judgment that it had to duty to defend or indemnify and moved for summary judgment.

    Amerisure first argued the homeowners’ faulty workmanship claims did not allege “property damage” under the policies. It argued there were no allegations that any property damage existed, but merely that the stucco suffered from construction defects. The court disagreed. Among the allegations was the statement that due to the construction defects, the homes suffered damage “not only to the exterior stucco, but also to the underlying wire lath, paper backing, house wrap, flashing, water resistive barriers, sheathing, interior walls, interior floors and/ or other property.” Consequently, the underlying claims amounted to property damage.

    The court then considered exclusions relied upon by Amerisure. Exclusions J (5) and (6) precluded coverage for faulty workmanship. Both were limited by the phrase “that particular party” of property damaged due to the insured’s work. This limitation precluded application of the exclusions to damage on other parts of the home or non-defective portions of the insured’s work. Here, several of the homeowners alleged damage to parts of the house beyond the stucco system, including interior walls, interior floors and other property. Therefore, Amerisure failed to establish as a matter of law that Exclusions J (5) and (6) prohibited coverage for the homeowners’ claims. 

    Next the court determined that Exclusion k did not apply to the construction of a building because buildings were constructed or erected, not manufactured. 

    Exclusion L, Damage to Your Work, only applied to exclude damages to the insured’s “competed” work. The underlying complaints did not specifically allege when property damage from McMillin’s work occurred. The property damage could have occurred before, during, and after completion of McMillin’s work. 

    Finally, there was a duty to defend rip and tear allegations. Amerisure asserted that the policy did not cover tear-out work performed to remove and replace the stucco system because defective work itself did not constitute covered “property damage” and any ensuing tear-out work would not qualify for independent coverage under the policies. The extent of any property damage and whether repair or removal of the stucco exterior was necessary to fix any covered damages would depend upon the facts in each instance. For the duty to defend analysis, the insured needed only to demonstrate the potential that tear-out work would be necessary. 

    The duty to indemnify could only be determined when the underlying suit was concluded.

    Consequently, Amerisure’s motion for summary judgment was denied. 

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email

Florida Appellate Court Finds Water Damage Sub-limit Ambiguous And Includes Tear-Out Costs

Brennah S. Toomey | Phelps Dunbar

A Florida appellate court affirmed summary judgment entered in favor of insureds after determining that the policy wording applicable to the loss was ambiguous. Security First Ins. Co. v. Vazquez,  No. 5D20-2528, 2022 Fla. App. LEXIS 1205, 47 Fla. L. Weekly D487b (Fla. 5th DCA, Feb. 18, 2022).

The insureds reported water damage to their insurer following the failure of a cast iron plumbing system. The insurer accepted coverage for the claim and issued payment pursuant to the policy’s limited water damage endorsement sub-limit. The insureds, however, filed suit alleging that they were owed the costs to tear out the concrete in order to access and repair the damaged plumbing. The parties filed cross-motions for summary judgment on whether the limited water damage endorsement sub-limit included the access costs. The trial court entered judgment in favor of the insureds.

On appeal, the insureds argued that the endorsement was ambiguous as to coverage for the tear-out costs and the sub-limit did not apply to those costs. The insurer countered that the tear-out costs were necessarily a part of the water damage claim and were, therefore, included within the endorsement’s sub-limit. The court concluded that the policy should have expressly stated that the tear-out costs were subject to the water damage endorsement sub-limit and that because the endorsement could reasonably be interpreted in each party’s favor, affirmed summary judgment in favor of the insureds.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email

Paying The Ultimate Premium: Does Your Insurance Cover Property Damage Or Will You Be Left Holding the Bag?

Anna-Bryce Hobson | Bradley Arant Boult Cummings

A recent decision by the Eleventh Circuit (the federal appeals court supervising trial courts in Florida, Georgia, and Alabama) sheds light on at least one way that insurers with complicated policies (and a host of exclusions) may avoid providing coverage and defense resources to insured material suppliers whose products are the focus of defect claims. In Morgan Concrete Company v. Westfield Insurance Company, Morgan Concrete (“Morgan”) agreed to supply ready-mix concrete to Georgia Concrete for Georgia Concrete’s work on a multilevel building at Clemson University. The specifications for the job required that concrete for Georgia Concrete’s scope have a specific strength (measured in PSI). During pours for the second level of the structure, Georgia Concrete encountered strength deficiencies which it attempted to remedy by ordering a higher strength ready-mix to achieve the specified PSI.

However, the strength deficiencies continued, and Georgia Concrete blamed its supplier Morgan – ultimately withholding payment and prompting Morgan to cease further deliveries and file a lien on the property. In response, Morgan asserted that the strength issues with its concrete were the result of Georgia Concrete mishandling the concrete, exposing it to high ambient temperatures, and not sampling and maintaining it in accordance with industry standards.

During this period of time, Morgan held an insurance policy through Westfield Insurance Company which included coverage for sums Morgan became legally obligated to pay as damages because of “property damage . . . caused by an occurrence.” A common phrase in CGL policies, Westfield defined “property damage” as “physical injury to tangible property, including all resulting loss of use of that property[.]”  The policy excluded property damage to the concrete itself, “property damage” to Morgan’s work, and “damages claimed for any loss, cost or expense incurred by Morgan or others for the loss of . . ., inspection, repair, replacement, [or] adjustment of Morgan’s product,. . . [or] its work.” The policy included a defense and indemnity provision, and Morgan tendered its defense of this dispute to Westfield.

Though Westfield initially provided defense for Morgan under a reservation of rights, it later withdrew because it determined there was no alleged “property damage” under the policy. Morgan sued Westfield in federal court seeking, among other things, a determination that Westfield had a duty to defend Morgan in its state court suit with Georgia Concrete. The federal court, applying Georgia law, agreed with Westfield, explaining that the alleged “property damage was [only] to [Morgan’s] concrete and not to any other component parts of the Level 2 slab or to the structure as a whole.” On appeal, the Eleventh Circuit agreed finding that Georgia law defined property damage “as damage to property that was previously undamaged” and “damage beyond mere faulty workmanship.”  As a result, the Eleventh Circuit determined that there was no trigger under the policy for Westfield to provide a defense.

This “win” for insurers highlights how crucial it is for the construction industry to understand the nuances of coverage provided under policies and actively negotiate the necessary coverage parameters.  Contractors and suppliers should understand what types of damages will trigger coverage for “property damage.” A few other principles to consider when analyzing coverage as it relates to upcoming work:

  1. Think big picture. There is a tendency to only look inwards when evaluating damages. It is important to analyze damages to other project elements and other contractors’ work– those impacts may need to be raised with the insurer.
  2. Strike a balance. It is important to defend your work and materials. It is also important toidentify and explain all potential exposure to an insurer for purposes of coverage.
  3. Reassign Risk. If there are concerns about your insurance not covering certain property damage, consider ways of reassigning that risk elsewhere in the project cycle: contract provisions, estimating factors, negotiations with suppliers/subs, waiver documents, etc.
  4. Explore with your broker buying product defect insurance.

What is or is not “property damage” in any given construction dispute will depend on the specific policy, the project, the jurisdiction, and the players, but all contractors and suppliers should be considering the above principles when contracting for insurance or claiming coverage.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email

Potential Coverage Issues Implicated by the Champlain Towers Collapse

Theresa A. Guertin | SDV Insights

In June 24, 2021, the Champlain Towers South in Surfside, Florida collapsed, killing nearly 100 individuals (the “Collapse”). As experts uncover more information regarding the cause of the Collapse, those individuals who have filed lawsuits as well as the potentially culpable defendants are looking to insurers for coverage of their bodily injury and property damage claims.

Contractors, engineers, and other professionals are or anticipate being sued for their roles in the Collapse. Those professionals have professional liability policies and/or director and officer liability policies. Likewise, the condominium association’s commercial general liability (CGL) policies and its business property policy may have a duty to defend and/or indemnify their insureds as well. Finally, individual unit owners/renters may look to their homeowners’ insurance, auto insurance, health insurance, and/or life insurance policies for coverage.1

The potential breadth of insurance coverage issues raised by the Collapse is beyond the scope of this article. The article will consider some concerns that could impact insurance coverage under a standard CGL policy in the case of a building collapse.

I. Coverage under a Standard CGL Policy

The standard CGL policy is written on ISO Form CG 00 01 04 13. It provides that the insurer “will pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies.” Coverage under a standard CGL policy is triggered only if an “occurrence” causes the bodily injury or property damage, and if said injury or damage occurs during the policy period. Additionally, policy exclusions may impact coverage depending on the circumstances.

A. Defining an “Occurrence”

The standard CGL definition of occurrence means an “accident, including continuous or repeated exposure to substantially the same general harmful conditions.” The Florida Supreme Court has defined “accident” as “injuries or damage neither expected nor intended from the standpoint of the insured.”2 In other words, the Collapse should be considered an occurrence under the standard CGL policy because it caused injuries and damage neither expected nor intended from the insured’s standpoint.3

In support of this conclusion, Florida has adopted the “cause” theory, which defines “occurrence” by examining the cause of the injury.4 Thus, under Florida law, an occurrence is defined by the immediate injury-producing act.5 Here, the Collapse was the immediate injury-producing act for the wrongful death and injury claims. Thus, those claims will likely be considered a single occurrence.6 However, there could be more than one occurrence for the property damage claims if there was more than one immediate cause of the Collapse.7

B. Trigger of Coverage

Generally, there are four trigger of coverage theories: manifestation theory, exposure theory, injury-in-fact theory, and continuous trigger theory.8 In states that have adopted the “manifestation theory,” coverage is triggered under the CGL policy in effect when the injury or damage manifests itself, i.e., when it is discovered or discoverable. The “exposure theory” states that the CGL policy in effect during exposure to the injurious or harmful condition is triggered, or, in the case of property damage, when the installation of a defective product occurs. The “injury-in-fact theory” provides that the CGL policy in effect when the damage actually took place is the triggered policy for coverage. Finally, the “continuous trigger” theory states that all CGL policies are triggered if in effect during any exposure, actual injury, or manifestation. In other words, under a continuous trigger theory, multiple policies may be triggered.

Florida law is unsettled on what trigger theory applies to determine when an occurrence takes place for purposes of coverage under a CGL policy. While many courts have applied the manifestation theory, more recently, several Florida courts have applied the injury-in-fact trigger, unless the timing of the damages cannot be ascertained.9 In the context of the Collapse, the CGL policy or policies that are triggered would most likely be the policy or policies in place at the time of the Collapse under either the manifestation or injury-in-fact trigger theories. Further, more than one policy may be triggered for the property damage claims to the building and interior of the individual units if the damage to the building itself took place over a period of years.

However, if defective construction, negligent inspections, or other improper events took place prior to the collapse, which events caused, for example, settling of the foundation, cracks, water leaks, etc., then the settling of the foundation, cracks, water leaks and other damage could be considered the occurrence, and the policy (or policies) in effect at those times could be triggered. It is likely that the insurers, plaintiffs, and defendants will litigate what trigger of coverage theory should apply. If we are lucky, the Florida Supreme Court may have an opportunity to weigh in on the issue.

C. Identifying Property Damage

Under Florida law, the insured’s own defective work is not property damage. Only damage caused by defective work constitutes property damage for purposes of insurance coverage under a standard CGL policy.10 In other words, an occurrence causes property damage only if the faulty workmanship causes physical injury to some “otherwise non-defective” component of the project.11 Typically, only the resulting property damage will be covered by an insurer. The cost to fix or replace the faulty or defective work itself is not considered property damage and, therefore, is not covered under a standard CGL policy.

Notwithstanding the general rule, in one Eleventh Circuit decision, the court analyzed the scope of covered property damage where defective work had to be destroyed in order to repair the resulting damage.12 In Carithers, a defectively constructed balcony allowed water to seep in and cause property damage to the garage underneath. Although the defective balcony did not constitute property damage, the cost to demolish and replace the defective balcony was covered under the insurance policy because the “rip and tear” costs were necessary to repair the damaged garage. The Court held that this was part of the cost of repairing damage caused by the defective work. Thus, in Carithers, the insurer was required to indemnify the contractor for the cost to demolish and repair the defective balcony.

Following the Collapse, many condominium associations are having their buildings inspected and are discovering major issues that require significant and costly repairs. Whether these claims constitute property damage will be a hotly contested issue as insurance claims are made.

D. Policy Exclusions

While an extensive discussion of all the potential policy exclusions would be beyond the scope of this article, one important exclusion to discuss is the “your work” exclusion, which states that insurance coverage does not apply to “‘property damage’ to ‘your work’ arising out of it or any part of it and included in the ‘products-completed operations hazard’. This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor.”13

Many Florida cases have interpreted the “your work” exclusion to mean that insurance coverage does not apply to damages “arising” from the insured’s work.14 In other words, depending on the scope of work, the exclusion could be interpreted broadly. On the other hand, the subcontractor exception provides coverage for damage to the insured’s work arising from the faulty work of the insured’s subcontractors. Where a subcontractor’s faulty work damages the contractor’s work, the contractor’s insurance should indemnify the contractor for damage to its work.

II. Statute of Repose

Even if the victims in the Collapse can prove that an occurrence took place and that it caused property damage and/or bodily injury, they will have to contend with Florida’s statute of repose.15 Florida Statute §95.11(3)(c) states,

[a]n action founded on the design, planning, or construction of an improvement to real property. . . must be commenced within 10 years after the date of actual possession by the owner, the date of issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion of the contract or termination of the contract. . . whichever date is latest.16

Because the building involved in the Collapse was decades old, if the plaintiffs file counts against the original architects and builders based on the design, planning, or construction of the condominium (which plaintiffs have not done), then the claims could be barred, and the victims could be prevented from recovering from those defendants’ insurance carriers.17

What constitutes “design, planning, or construction” may be a source of debate. For example, one appellate court held that negligently inspecting newly completed construction was not founded on the design, planning, or construction of improvements to real property.18 In the Collapse litigation, one issue is the negligent inspection of the property, but not as newly completed construction.

Likewise, in a recent case, the Florida Fifth District Court of Appeal reversed the trial court’s grant of summary judgment, finding a genuine issue of material fact as to when the time began to run for purposes of the statute of repose.19 In Spring Isle, the contractor and subcontractor had entered into a “master agreement” with no specific duration, payment amount, or scope of work, but it provided that the contractor would issue written job orders. Schedule “A” of the master agreement provided certain information relating to the project at issue in the case. The trial court found that because the agreement did not require the subcontractor to perform work, the contract was complete upon the contractor’s payment for each unit. Based on the payment dates, the trial court used the date of the certificate of occupancy as the trigger date for the statute of repose.

The Appellate Court reversed, stating that the work orders were not part of the record, and it could not determine whether each work order was a separate contract or whether they were part of a larger contract. Further, there was no indication that the contractor’s payments were “final” as opposed to progress payments. In other words, the Court found that the subcontractor presented insufficient evidence to determine the contract completion date. Therefore, the Court reversed and remanded the trial court’s ruling.

III. Other Potential Avenues of Recovery

In any collapse case, the maintenance of the building, or lack thereof, may affect liability and insurance coverage. Thus the Condo Board’s director and officer liability policy may be implicated despite those policies typically containing exclusions for property damage and bodily injury claims. Further, the individual unit owners who voted against assessments to repair the building could have some culpability, if such facts are present. Likewise, contractors who repaired the building, building inspectors, and property management companies may have liability exposure for their roles in the Collapse. Finally, attorneys who advised the Condo Board could face lawsuits.

Each of the insurance policies implicated by the Collapse may be required to provide additional coverage to the Board or to other defendants pursuant to litigation claims, depending on who is named as an additional insureds under each policy, and depending on the claims made against each defendant.20

As any practitioner can readily see, the insurance coverage issues raised by a building collapse are far-reaching. Not only must the involved parties determine the cause of the collapse, they must also identify what insurance policies could be triggered.. Other considerations will include whether the insurance policies provide additional insured coverage, and if so, to what extent, and also what umbrella or excess policies, if any, are triggered, since it is apparent that the lawsuits will exceed almost any primary CGL policy. Finally, if multiple policies indemnify the insureds, there may be disputes as to priority of coverage and apportioning liability.

Given the plenary and cumbersome considerations, it is important that any attorney assessing claims arising out of the Collapse be well-versed in insurance coverage litigation in Florida and be prepared to tackle each of these issues as they arise.
1Aside from homeowners seeking coverage for property damage and bodily injuries, the homeowners who lived in the building may face individual liability if they voted against an assessment to repair the failing building.
2State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So. 2d 1072, 1076 (Fla. 1998)
3Depending on the causes of action in the underlying litigations, what courts consider to be the “occurrence” may change. For example, in an automobile accident caused by an insured’s employee, an insurer’s duty to defend and indemnify under a CGL policy may be triggered if the accident victim files a count of negligent hiring. See, e.g., Smith v. Gen. Acc. Ins. Co. of Am., 641 So. 2d 123 (Fla. 4th DCA 1994). But see Am. Surety & Cas. Co. v. Lake Jackson Pizza, Inc., 788 So. 2d 1096 (Fla. 1st DCA 2001) (holding that insurer had no duty to defend where CGL policy contained an exclusion for all injury or damage “arising out of” the ownership of any auto).
4Koikos v. Travelers Ins. Co., 849 So. 2d 263 (Fla. 2003) (holding that each shooting constituted a separate occurrence). Compare the “effect” theory, followed in a minority of states, whereby the number of occurrences is calculated by analyzing the effects or injuries resulting from an event.
5Port Consolidated, Inc. v. Int’l Ins. Co. of Hannover, PLC, 826 Fed. Appx. 822 (11th Cir. 2020) (concluding that multiple fuel thefts from cardlock fuel facility constituted multiple occurrences).
6See, e.g., Prieto v. Reserve Ins. Co., 340 So. 2d 1282 (Fla. 3d DCA 1977) (holding that the building collapse was the accident and denying coverage where the collapse took place outside the policy period).
7See Mid-Continent Cas. Co. v. Basdeo, 477 Fed. App’x 702, 708 (11th Cir. 2012) (finding there had been three occurrences where contractor performed faulty tarping, faulty work on the flat roofs, and faulty work on the mansards).
8See, e.g., Auto Owners Ins. Co. v. Travelers Cas. & Surety Co., 227 F. Supp. 2d 1248, 1265 (M.D. Fla. 2002) (discussing each trigger theory and stating, “it is the bodily injury or property damage that must occur during the policy period in order for there to be coverage; and an ‘occurrence’ need not take place during the policy period.”).
9See Id. (in a construction defect case, applying manifestation theory to interpretation of a CGL policy); see also Mid-Continent Cas. Co. v. Frank Casserino Const., Inc., 721 F. Supp. 2d 1209 (M.D. Fla. 2010) (manifestation theory); Assurance Co. of America v. Lucas Waterproofing Co., Inc., 581 F. Supp. 2d 1201 (S.D. Fla. 2008) (manifestation theory); but see Carithers v. Mid-Continent Cas. Co., 782 F. 3d 1240 (11th Cir. 2015) (applying injury-in-fact theory and expressly rejecting the manifestation theory in homeowner’s coverage suit under CGL policy) (citing Trizec Properties, Inc. v. Biltmore Const. Co., Inc., 767 F. 2d 810 (11th Cir. 1985)); Ohio Cas. Ins. Co. v. Timber Development Corp., 2013 WL 12148856 at *10 (M.D. Fla. Sept. 23, 2013) (injury-in-fact theory).
10U.S. Fire Ins. Co. v. J.S.U.B., Inc., 979 So. 2d 871 (Fla. 2007) (holding that the post-1986 standard CGL policy with products-completed operations hazard coverage provides coverage when a claim is made against the insured for damage to the completed project caused by a subcontractor’s defective work).
11Auto-Owners Ins. Co. v. Pozzi Window Co., 984 So. 2d 1241 (Fla. 2008); see also Amerisure Mut. Ins. Co. v. Auchter Co., 673 F.3d 1294 (11th Cir. 2012).
12Carithers v. Mid-Continent Cas. Co., 782 F. 3d 1240 (11th Cir. 2015). See also Pavarani Constr. Co. (SE), Inc. v. ACE Am. Ins. Co., 161 F. Supp. 3d 1227 (S.D. Fla. 2015) (determining that coverage existed to repair the defective work where doing so was necessary to stabilize the building and prevent ongoing damage to otherwise non-defective property).
13ISO Form CG 00 01 04 13, Section I, Coverage A.2.l. “Your work” is defined as work performed by you or on your behalf, including materials, parts, or equipment furnished in connection therewith.
14See, e.g., J.B.D. Constr. Inc., v. Mid-Continent Cas. Co., 572 Fed. Appx. 918 (11th Cir. 2014) (stating that because the insured undertook construction of the entire fitness center, the “your work” exclusion barred coverage for damages to the completed fitness center and its components). See also, Auto-Owners Ins. Co. v. Elite Homes, Inc., 676 Fed. Appx. 951 (11th Cir. 2017) (holding no duty to defend where complaint in underling litigation did not allege damage to any property other than the insured’s own work). But see, Southern Owners Ins. Co. v. Gallo Building Svcs., Inc., 2018 WL 6619987 at *6 (M.D. Fla. Dec. 18, 2018) (concluding insurer had duty to defend where underlying complaint alleged damages to other building components, damage to the work of other subcontractors, loss of use, and other resulting damages).
15Hess v. Philip Morris USA, Inc., 175 So. 3d 687 (Fla. 2015) (stating that the statute of repose is an affirmative defense).
16The statute provides a one (1) year savings clause for counterclaims, cross-claims, and third-party claims that arise out of the conduct, transaction, or occurrence set out in the pleadings.
17Although Florida litigants have disputed the interpretation of the statute of repose, such litigation likely has no impact on how the statute of repose will affect recovery in this case. See, e.g., Gindel v. Centex Homes, 267 So. 3d 403 (Fla. 4th DCA 2018) (tolling the statute of repose after service of a Chapter 558 pre-suit notice). In response to Gindel, the Florida Legislature added a provision to chapter 558 expressly stating that a notice of claim does not toll the statute of repose.
18Manney v. MBV Engineering, Inc., 273 So. 3d 214 (Fla. 5th DCA 2019).
19Spring Isle Community Assoc., Inc. v. Herme Enterprises, Inc., 2021 WL 4927602 at *1 (Fla. 5th DCA Oct. 22, 2021).
20Practitioners must also look at the contractual indemnification obligations between each defendant.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email

Frozen Pipe Claims: Subrogation, Common Failures, and Complex Causes

Andrew Schmit | Claims Pages

Each year, water damage and freezing pipes cost insurers $15-$20 billion and result in claims from approximately 1 in 50 insured homes.1 While many cases of water damage are caused by a lack of maintenance or normal wear and tear, in the winter months, claims related to water damage and freezing pipes are extremely common.

Claims related to frozen pipes typically fall into one of two categories: either pipes filled with water are exposed to freezing temperatures or pipes that should be dry end up filling with water unintentionally during freezing weather conditions.

Often, frozen pipe claims are the result of multiple factors. It’s important to investigate the system as a whole, consider all possible causal factors, and collect evidence not only relating to the pipe itself but its surroundings as well. This is especially true in a situation that may involve subrogation.

Water-Filled Pipes Exposed to Freezing Conditions

The most common type of plumbing leak involves water-filled pipes that are exposed to freezing temperatures. The pipes involved can be domestic water supply piping, either interior to a building or externally buried, drain lines, or wet sprinkler systems.

Whenever a pipe freezes, it is important to ask the question: why now? What changed since last winter to cause this pipe to freeze this year? In some cases, the answer is colder weather. The Texas winter storm in February of 2021 is a perfect example of water-filled pipes being exposed to temperatures they may have never been previously exposed to. In cases like this, the cause is obvious since the claim you’re handling is likely duplicated the next house over.

In other cases, the cause is less clear. A contractor working in the attic may have dislodged insulation. Maybe a rodent chewed a tunnel from the cold outside air directly into a wall cavity with a water pipe. Or, maybe the pipe was new with improperly installed insulation.

In the cases above, investigators must accurately determine the cause of the pipe freeze to prevent future failures and for any potential subrogation to be successful. Identifying that the pipe froze is only the first step in the investigation.

Sewer Line Freezes

While sewer line freezes are far less frequent types of frozen pipe claims, they do occur occasionally. Envista was once called to investigate a toilet overflow event from the top floor of a building, originally constructed in the late 1800s, in Kentucky. The overflow had caused hundreds of thousands of dollars in historical building repairs and asbestos abatement.
It was reported that the toilet had been continuously running through a leaking flapper valve in the toilet tank. Typically, leaking flapper valves do not cause overflow events, since the running water will continue to run into the toilet bowl and down the sewer line. However, the sewer line in this building was run directly along the inside of an exterior brick wall with no insulation.

During a cold winter night, the running water in the sewer line began to freeze, eventually forming an ice plug. With nowhere else to go, the water began to fill the sewer line, the toilet bowl, and eventually all three stories of the building over a holiday weekend.

This loss only occurred because the continuously running toilet, the uninsulated sewer line, and the freezing temperatures all occurred simultaneously. This example emphasizes how many frozen pipe claims are not the result of a single cause, but rather a combination of several factors.

Dry Pipes in Freezing Conditions Unintentionally Filled with Water

The second most common freeze-related failures involve pipes located in freezing conditions that are supposed to be dry but aren’t. Dry sprinkler systems are a common example of this type of piping. These systems are specifically designed to operate in non-conditioned spaces and normal maintenance includes frequent draining of the piping to remove moisture buildup. Additionally, these piping networks must all be properly sloped towards drain points so that water does not accumulate in unheated sections of piping.

The cause of freezing in dry sprinkler systems can be a combination of factors, including a lack of maintenance, design defects, or installation errors. One investigation involved a small medical facility that included nearly 40 drain points, all of which needed to be emptied every two weeks. These drain points were all unmarked and located above suspended ceiling tiles. Additionally, no map was included in the riser room to indicate where the abundant drain points were in the building.

The installation of nearly 40 unmarked and undocumented drain points created a scenario where proper maintenance of the system was impossible. As the system accumulated condensation, this condensation began to collect at the drain points. However, because the drain points were not being drained, the water-filled the piping over time and began to fill into unheated areas of the attic space. On a cold night, this piping froze and burst, resulting in a six-figure loss. While this loss is technically the result of a lack of maintenance, by investigating the system design as a whole, a strong case could be made for subrogation against the designer and installer of the system.

Another place where dry pipes often accidentally fill with water is in heating, ventilation, and air conditioning (HVAC) equipment. Chillers, air handlers, and water towers all contain coils that carry water under normal operation. However, when this equipment is shut down for the winter months, operators must follow specific winterizing procedures that prevent water within the coils from freezing. Additionally, when this equipment is valved off, the condition of the valve must be verified to ensure no water is leaking through. Over the winter, even a small leak can result in enough water accumulation to cause freeze damage.

Evidence Collection and Subrogation

Determining freezing as the mechanism of a pipe rupture is only the first step in successful failure analysis. The true goal of any investigator should be to discern what the exact circumstances were that allowed the freezing to occur.

When investigating those circumstances, the evidence required to properly investigate a freeze-related pipe rupture almost always includes more than the failed section of the pipe itself. While it is important to collect the failed pipe or both sides of a failed joint, it is equally important to properly document the original location of the installed evidence as well as the surroundings. This documentation may include details such as the slope of the pipe, its proximity to exterior walls or drafts, and the location of insulation.

It is also critical to obtain an accurate maintenance history as well as recent construction or modifications to the system. Successful subrogation for a freeze claim starts with a thorough and accurate failure analysis, which cannot be complete without proper collection of all available evidence.


Insurance Information Institute,

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email