ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
This case arises from a dispute between an insurance company and the owners of a property as to whether an insurance agreement covers arsenic damage to the property. On December 11, 2011, the Association of Apartment Owners of Imperial Plaza (“Plaintiff’ or “Imperial Plaza”) filed a Complaint asking for declaratory relief that Fireman’s Fund Insurance Company (“Defendant” or “FFIC”) must pay benefits to Plaintiff under an insurance policy issued by FFIC.
FACTUAL BACKGROUND
Defendant issued an all-risks insurance policy to Plaintiff that covered the real property and building located at 725 Kapiolani Blvd., Honolulu, HI (“Building”) from the time period of October 15, 2009-October 15, 2010 (“Policy”). Plntf.’s CSF Ex. 1 at 967. Defendant provided substantially similar coverage to Plaintiff from October 15, 2005 through October 15, 2012. Plntf.’s CSF Dec. of John Bouchie at 2 ¶ 6.
The Building was originally a three-story warehouse with a roof consisting of a cement topping slab. Plntf.’s CSF Ex. 2 at IP01151. A thick layer of insulation was placed on top of the cement roof slab (“Insulation Layer”), with the roof being placed upon the Insulation layer. Id. The Insulation Layer consisted of a layer of cork, a layer of canee, and another layer of cork. Id. Canee is a building material unique to Hawai’i. Plntf.’s CSF Ex. 3 at IP 000370. It is a fiberboard made out of sugar cane bagasse and treated with inorganic arsenic compounds as- an anti-termite agent. Id.
In the 1990’s, a fourth floor was constructed on top of the existing third floor roof of the Building. Plntf.’s CSF Ex. 2 at IP 01151; Ex. 4 at IP01308. To build the
On February 26, 2003; Miyasato Kuniyoshi Engineers LLC conducted tests of the fourth floor to discover the source of floor deflections. Plntf.’s CSF Ex. 2 at IP 01151, Def.’s CSF Ex. A, Attachment B at 1-3. The report found that moisture in the Insulation Layer was decomposing the canee. Id. The report also recommended removal of the Insulation Layer and replacement of the floor. Id.
In, 2006, polyurethane gel was injected into the depressed areas of the fourth floor in order to increase stability of the flooring. Plntf.’s CSF Ex. 2 at IP 01152. Although a 2006 and 2008 report conducted by Wiss, Janney, Elstner Engineering concluded that the polyurethane gel injections were effective (“WJE Report”), Trinity ERD conducted further tests in 2010 to determine if the Insulation Layer was dry in order to inject additional material to support the concrete floor slab.' Plntf.’s CSF Ex. 3 at IP 00945.
On or about June 9, 201Ó, the date of Trinity ERD’s report, Plaintiff discovered the presence of arsenic in. the fourth floor concrete slab above the Insulation Layer. Plntf.’s CSF Ex. 3. Moisture had infiltrated the Insulation Layer and dissolved the canee. Plntf.’s CSF Ex. 4 at IP 01309, Def.’s CSF Ex. A, Attachment B at Page 2 of 4. The moisture carried the arsenic in the canee into the cement topping slab above the Insulation Layer. Plntf.’s CSF Ex. 4 at IP 01309, Def.’s CSF Ex. A at 1. The concentration of arsenic required abatement because it posed a health risk to the Building occupants. Plntf.’s CSF Ex. 4 at IP 01310, Def.’s CSF Ex. A at 1 ¶ 4. Plaintiff reported the arsenic damage claim to Defendant shortly thereafter. Plntf.’s CSF Dec. Of John Bouchie at 2.
Defendant’s consultant, Allana, Buick, and Bers, Inc. (“ABB”), completed an investigation of the damage to the Building and sent a report to Defendant on January 12, 2011. Def.’s CSF Ex. A. On February 10, 2011, Defendant sent a letter to Plaintiff denying coverage of the damage under the Policy (“Denial Letter” or “Denial”).
Sometime in 2011-2012, Plaintiff remediated the Building, removing the fourth floor concrete slab and the decomposed canee. Plntf.’s MSJ at 4, Plntf.’s CSF Ex. 4 at IP 01307. During remediation, Trinity ERD investigated additional potential sources of moisture. Plntf.’s CSF Ex. 4 at IP 01310. As a result of the investigation, the plumbing piping and an air handler were rehabilitated as part of the remedial construction. Id. Defendant did not send a consultant to examine the Building during remediation, although the record reflects that ABB had stated in the January 12, 2011 report to Defendant that the Building should be remediated. Def. Opp. at 7; Def.’s CSF Ex. A at 2. Additionally, Plaintiffs engineer consultant, Colin Murphy, communicated to Defendant’s consultant, ABB, that Plaintiff would begin remediation and proceed with repairs. Plntf.’s Reply Ex. 7 at 46, 66-67. Plaintiff did not re-tender the claim to Defendant either during or after remediation. Def.’s CSF at 3 ¶ 6, Dec. of Paul Blanchard at 2.
• While the parties agree to the above basic outline of events; they disagree as to the causation of the moisture that resulted in the arsenic damage. Each party’s contentions are explained below.
Plaintiff contends that the moisture came from either (1) a broken domestic water line, (2) a broken waste line, (3) a large package type air handler unit located within the space and adjacent to the low area of the slab, or (4) cracks in the top
Defendant argues that the moisture came from either (1) “leakage in the roof assembly prior to construction of the upper floor” or (2) the exposure of edge conditions at the roof perimeter during the construction of the fourth floor. Def.’s CSF at 3 ¶ 2 (citing Plntf.’s CSF Ex. 3 at IP 00962). Defendant also argues that the floor depressions are likely due to the canee degradation caused by moisture trapped in the Insulation Layer from around 1990-1991. Def.’s CSF Ex. A at 1.
STANDARD
A party may move for summary judgment on any claim or defense — or part of a claim or defense — under Federal Rule of Civil Procedure (“Rule”) 56. Summary judgment “should be granted ‘if 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.’ ” Maxwell v. Cnty. of San Diego,
The substantive law determines which facts are material; “only disputes over facts that might affect the outcome of the suit under the governing law properly preclude the entry of summary judgment.” Nat’lAss’n of Optometrists & Opticians v. Harris,
A genuine issue of material fact exists if “a reasonable jury could return a verdict for the nonmoving party.” United States v. Arango,
The moving party has the burden of persuading the court as to the absence of a genuine issue of material fact. Avalos v. Baca,
When evaluating a motion for summary judgment, the court must “view the facts and draw' reasonable inferences in the light most favorable to the party opposing the summary judgment motion.” Scott v. Harris,
DISCUSSION
I. Whether the Insurance Policy Required Plaintiff to Re-tender the Claim After FFIC Denied Coverage
Defendant first argues that Plaintiff should be barred from coverage under the Policy because Plaintiff failed to retender the claim after “new” potential sources of water infiltration were discovered during remediation as stated in the Supplemental Trinity Report. See Def.’s Opp.' At 5-7. Defendant specifically alleges that Plaintiff violated the cooperation provision within the Policy, prejudicing Defendant by denying an investigation of the potential water sources that Plaintiff now uses to argue for coverage.
Plaintiff argues that no duty has been breached because Mr. Murphy informed ABB, Defendant’s consultant, that Plaintiff had bid out the remediation and would be subsequently conducting repairs. Plntf.’s Reply at 4. Defendant completed its report without waiting for repairs to begin. Plntf.’s Reply at 4. Plaintiff did not receive any other requests from ABB or Defendant to conduct another inspection after the commencement of remediation. Id.
Generally, an insurer seeking to avoid coverage because of an insured’s breach of a cooperation clause must prove “(1) the existence of substantial prejudice and (2) the exercise of reasonable diligence to secure the insured’s cooperation before it can deny coverage because of breach of a cooperation clause.” Hayes v. United Fire & Cas. Co.,
The rationale behind this rule is that the insurer first breached the contract by denying coverage; accordingly, the insured is no longer bound to cooperate under the agreement. See id and Arizona Property and Cas. Ins. Guar. Fund v. Helme,
The Court concludes that Defendant’s denial of coverage constituted a breach that relieved Plaintiff of the contractual duty to cooperate in this case. The Hawai’i Supreme Court noted in Best Place, Inc. v. Penn America Ins. Co. that an insured buys insurance to seek “protection and security from economic catastrophe.” 82 Hawai’i 120, 129,
The rationale behind the majority rule is particularly applicable here, where Plaintiff needed to quickly remediate and repair the Property to prevent the spread of the arsenic contaminated water instead of waiting for Defendant to decide whether or not to investigate the damage. See Plntf.’s Reply Ex. 7 at 47-50. Plaintiff persuasively argues that, if it was in fact still bound by the Policy after Defendant’s Denial, Plaintiff was confronted with the difficult position of quickly remediating to prevent further damage or waiting for Defendant to decide whether or not to conduct a further investigation. See Plntf.’s Reply at 17018 and Plntf.’s MSJ Ex. 1 at IP 01020 ¶ A.4. Because Defendant’s Denial made. Plaintiff assume the risk of financial insecurity, Plaintiff was free to take action without the constraints of the cooperation clause in the Policy.
Defendant relies upon minority rule cases like First Bank of Turley to argue that “[a] breach of the insured’s obligation to give notice of critical post-denial developments may modify, excúse or defeat the insurer’s performance under the contract.” First Bank of Turley v. Fidelity and Deposit Ins. Co. of Maryland,
Defendant also cites to National Union Fire Ins. Co. of Pittsburgh, Pa. v. Cagle for the proposition that an insured “owes the insurer the duty of complying with the contract terms together with a general duty of performance in good faith.”
Defendant also attempts to use the Denial Letter to argue that Plaintiff should have notified Defendant of the additional evidence of water sources. Def.’s Opp. at 8. However, the Denial Letter did not place any duty on Plaintiff to notify Defendant of additional facts uncovered during remediation and repair. The language in the letter is discretionary: “If you have further evidence you wish to submit to Associated Indemnity Corporation regarding your loss and claim, please forward it to my attention.” Plntf.’s CSF Ex. 2 at IP 01155. Plaintiffs decision not to volunteer information after the denial letter does not rise to the level of conduct establishing a breach of the cooperation clause. In Tran v. State Farm Fire and Cas. Co., a case upon which Defendant relies, the plaintiff specifically refused the insurer’s request to provide information, failed to respond to calls and letters, and failed to attend a scheduled meeting to arrange for the inspection of the premises.
In this case, Plaintiffs actions do not rise to the level of “stonewalling” Defendant’s investigation because Plaintiff has not refused a specific request by Defendant for information. As mentioned above, Plaintiff had notified Defendant’s consultant as to the remediation and repair work. Plaintiff also delivered Colin Murphy’s files to Defendant upon request including photographs and test results. Id. at 6, 13-14, and 48-49. Defendant has not provided evidence of Plaintiffs deliberate refusal to comply with any of Defendant’s requests.
II. Whether Plaintiff Is Entitled to Coverage Under the All-Risk Policy as a Matter of Law.
A. Hawai’i Law Rules of Construction for Insurance Policies
Under Hawai’i law, “the terms of an insurance policy are to be interpreted according to their plain, ordinary, and accepted sense in common speech, unless it appears from the policy that a different meaning is intended.” Great Divide Ins. Co. v. AOAO Maluna Kai Estates,
B. Whether Plaintiff Meets its Burden for Coverage Under the Policy
Plaintiff has the burden to prove that a loss is covered under the terms of the insurance policy. Sentinel Ins. Co. v. First Ins. Co. Of Hawaii, 76 Hawai’i 277,
In this case, Plaintiff must demonstrate that the Property covered by the Policy
The term “direct physical loss or damage” is not defined in the Policy. See generally, Plntf.’s CSF Ex. 1. Black’s Law Dictionary defines “Damage” as “Loss or injury to a person or property.” Black’s Law Dictionary 445 (9th ed. 2009).
The concrete slab, carpet, and interior objects are physical matter within the ordinary use of those words. See Ward Gen. Ins. Servs., Inc. v. Employers Fire Ins. Co.,
For the second requirement, the arsenic damage was discovered on or about June 9, 2010 and continued to occur as of February 10, 2011. See Plntf.’s CSF Ex. 2 at IP 01153 ¶ c. Regarding the water leak, Plaintiff argues that the leak “occurred slowly over a number of years before it began to cause the arsenic damage. Plntf.’s MSJ at 16, Plntf.’s CSF Ex. 4 at IP 01310. In an occurrence policy like the one before the Court, “the event that triggers' potential coverage is the sustaining of actual damage by the complaining party and not the date of the act or omission that caused the damage.” Sentinel Ins. Co., Ltd. v. First Ins. Co. of Hawai’i, Ltd., 76 Hawai’i 277, 288,
In this case, Plaintiff argues that the court should apply the “continuous injury” trigger of coverage. This theory , is applied “when an injury process is not a definite, discrete eveni&wkey;for example, where the damage continues progressively over time spanning different insurer’s policy terms.” Id. at 298,
Plaintiff demonstrates that damage to the Property occurred — namely in the form of water carrying arsenic into the concrete slab, which resulted in accumulated arsenic that required abatement. Plntf.’s CSF Ex. 4 at IP 01310. Plaintiff also establishes that the water infiltration occurred progressively over time as a continuous and indivisible process of injury. Id. See Sentinel, 76 Hawai’i at 301,
Defendant argues that Plaintiff should not be covered by the Policy because Plaintiff failed to notify Defendant of the “floor deflections and resulting damage” within two years after Plaintiff noticed this type of damage. See Def.’s Opp. at 27, Plntf.’s CSF Ex. 2 at IP 01154-55. Defendant references a provision in the Policy that states as follows: “No one may bring a legal action against us under this Coverage . Section unless ..., The action is brought within 2 years after the date on which the direct physical loss or damage occurred.” Plntf.’s CSF Ex. 1 at IP 01017.
However, Plaintiff only argues for coverage of the arsenic damage, which Plaintiff asserts- was recently discovered and there
Plaintiff establishes and Defendant does not contest that the presence , of arsenic in thé concrete topping slab was first discovered on June 9, 2010. Def.’s CSF at 2 ¶ 4. The Miyasato Report dated February 26, 2003, the WJE Report dated September 5, 2006, and the WJE Report dated January 31, 2008 do not mention the threat of arsenic contamination.. Def.’s CSF Ex. A, Attachment B, C, and D. Defendant also does not contest that Plaintiff reported the arsenic damage claim to Defendant shortly after its discovery on June 9, 2010. Id. at ¶ 6. As noted above, an “occurrence” under an insurance policy happens when a party sustains actual damage as opposed to the date of the act or omission that caused the damage. Sentinel, 76 Hawai’i at 298,
III. Whether Defendant As a Matter of Law Demonstrates That an Exclusion Applies
“An ‘all risks’ policy creates a special type of coverage extending to risks not usually covered under other insurance, and recovery under an ‘all risk’ policy will be allowed for all fortuitous losses ... unless the policy contains a specific provision expressly excluding the loss from coverage.” C.H. Leavell & Co. v. Fireman’s Fund Ins. Co.,
Instead, the insurer has the burden to prove that the peril that proximately caused the insured’s loss is “specifically excluded from the coverage of the policy.” Id. Additionally, the “efficient proximate cause rule” applies “when two or more perils combine in sequence to cause a loss and a covered peril is the predominant or efficient cause of the loss.” Vision One, LLC v. Philadelphia Indem. Ins. Co.,
Furthermore, if the insured raises an exception to an exclusion, the insurer also has the burden of proving that the exception does not apply. Id. at 832, accord Glaviano v. Allstate Ins. Co.,
Accordingly, Defendant has the burden of proving that the peril that caused Plaintiffs loss is specifically excluded from the Policy. Additionally, Defendant has the burden of showing that an exception to the exclusion does not apply. If Defendant provides evidence creating a genuine issue of material fact as to whether the peril is specifically covered by an exclusion, then summary judgment in favor of Plaintiff would be inappropriate. Defendant argues that the Section D.l.f Pollu
A. Whether a Category 3 Exclusion Applies
Defendant argues that the water infiltration itself was caused by Category 3.a Exclusions such as “gradual deterioration, latent defect, mold, wet rot,” or Category 3.i Exclusions of “faulty, inadequate or defective design specifications or construction.” Def.’s Opp: at 12-14. Accordingly, under Defendant’s logic, because an exclusion caused the water infiltration, the damage caused by the water infiltration is excluded under the Policy as well.
As an initial matter, the Court finds that an issue of material fact exists as to whether the cause of the moisture infiltration is a covered or an excluded peril under the Policy. Plaintiff provides engineering reports stating that the cause of the moisture infiltration may be a covered cause of loss, ¿a, the broken water line, broken waste line, or the air package handler. Plntf.’s CSF at 2 ¶ 5, Dec. of Colin Murphy ¶¶ 4-5, Ex. 4. Defendant produces evidence that the moisture came from an excluded peril, i.e., construction defects. Defi’s CSF at 3 ¶ 2 (citing Plntf.’s CSF'Ex. 3 at IP 00962). This Court may not weigh conflicting evidence when considering a motion for summary judgment. See In re Barboza,
Even though the Court assumes that the cause of the moisture infiltration is an issue of material fact, Plaintiffs argument is that the Category 3 Exclusions do not apply to the moisture infiltration itself— accordingly, the arsenic damage is covered by the Policy because the moisture infiltration is the “efficient proximate cause.” Plntf.’s MSJ at 18-19. In other words, even if the moisture originates from an excluded peril, the moisture itself is an included peril.
Plaintiff argues that the water infiltration falls within an Ensuing Loss Clause attached to the Category 3 Exclusions and that coverage therefore applies. See Plntf.’s MSJ at 20-22. Defendant’s three particular Category 3 Exclusions are listed below, in addition to the Ensuing Loss Clause (see bolded text):
3. This Coverage Section does not insure against loss, damage or expense caused by or resulting from the following. But if loss or damage from a covered cause of loss results, we will pay for that resulting loss or damage.13
a. Wear and tear, gradual deterioration, inherent vice, latent defect, depletion, erosion, corrosion, mold, wet or dry rot;
d. Settling, cracking, shrinkage, •bulging, or expansion of pavements, foundations, walls, floors, roofs or ceilings;
i. Faulty, inadequate or defective:
(2) Design specifications, workmanship, repair, construction, renovation, remodeling, grading compaction;
(3) Materials used in repair, construction, renovation, or remodeling; or
(4) Maintenance of part or all of any property wherever loeated.
Plntf.’s CSF Ex. 1 at IP 01007 (emphasis added).
The Ensuing Loss Clause “operates to carve out an exception to a policy exclusion.” Vision One, LLC v. Philadelphia Indem.Ins. Co.,
In Vision One, the plaintiff contracted with a company to pour concrete for a building.
Another case that is more closely analogous to, the current case is Boardwalk Condominium Ass’n v. Travelers Indemnity Company of Illinois, Civ. No. 03cv505 WQH (Wmc),
The moisture is a separate and independent event from Defendant’s identified cause of design defect in constructing the fourth floor without removing the canee insulation layer. See Boardwalk,
The Winans case cited by Defendant does not convince the Court otherwise. In Winans v. State Farm Fire and Cas. Co., the Ninth Circuit examined the definition of “latent defect.”
The Aetna Casualty and Surety Co. v. Yates case cited by Defendants is certainly more applicable to the case before the Court. In Aetna, insureds sued for coverage for damage to their home caused by rot.
Defendant also argues that allowing Plaintiff tu recover for water infiltration would eviscerate the exclusions for rot, “which necessarily involves the contact of water with another material.” Def.’s Opp. at 24. Defendant relies on the Aetna case for this proposition. See Def.’s Opp. at 25 (citing Aetna,
B. Whether the Pollution Exclusion Applies
Defendant also argues that the Pollution Exclusion applies to Plaintiffs loss caused by the concentrated arsenic. Def.’s Opp. at 15-16. Defendant argues that, even if moisture infiltration was the “efficient proximate cause” of the arsenic damage, there would be no coverage because arsenic is a pollutant and there is anti-concurrent causation language in the policy with respect to the Pollution Exclusion. Def.’s Opp. at 17-19. An anti-concurrent causation clause excludes a loss if the loss results “from a combination of covered and excluded perils.” Preferred Mutual Ins. Co. v. Meggison,
D. Exclusions
1. This Coverage Section does not insure against loss or damage caused directly or indirectly by any of the following. Such loss or damage is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss.
f. Pollution
The actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants. But, if the same is the direct result of a covered cause of loss, we do insure direct physical loss or damage to covered property caused by the actual contact of the covered property with the pollutants.
Plntf.’s CSF Ex. 1 at IP 01005 ¶ D.l.f.
Assuming arguendo that the arsenic in this case qualifies as a “pollutant,”
The Hawai’i Supreme Court has noted that “because insurance policies are contracts of adhesion and are premised on standard forms prepared by the insurer’s attorneys, we have long subscribed to the principle that they must be construed liberally in favor of the insured and any ambiguities must be resolved against the insurer.” Hart, 126 Hawai’i at 456,
CONCLUSION
For the foregoing reasons, the Court GRANTS Plaintiffs Motion for Partial Summary Judgment.
IT IS SO ORDERED.
Notes
. The Complaint also requested attorneys’ fees and costs as well as "such other relief as [the Court] may deem just and proper under the circumstances.” Complaint at 5, ECF No. 1.
. When the party moving for summary judgment would bear the burden of proof at trial, the movant must present evidence which would entitle it to a directed verdict if the evidence were to go uncontroverted at trial. Miller v. Glenn Miller Prods.,
. The Ninth Circuit has noted that “Legal memoranda and oral argument, in the summary-judgment context, are not evidence, and
. The Policy states that Plaintiff is to permit Defendant to inspect the property and records proving loss or damage as well as to let Defendant take samples of the damage for inspection, testing, and analysis. Plntf.’s CSF Ex. 1 at IP 01020.
. Defendant's counsel conceded at the hearing on March 25, 2013, that Defendant relies upon the minority rule to argue that Plaintiff should not receive coverage for failure to re-tender the claim after Defendant’s denial of coverage.
. Plaintiff argues that the Hawai’i Supreme Court indicated it would follow the majority rule by examining in Best Place "whether an insurer’s silence may be interpreted as a denial of a claim so as to constitute a waiver of a policy’s proof of loss requirement." Plntf.’s Reply at 14. However, while the Hawai’i Supreme Court found in favor of the plaintiff on the waiver issue, the court did so on the basis of defendant's specific conduct instead of concluding that the insurer’s silence constituted a denial justifying the insured's breach of a contract provision. Best Place, 82 Hawai’i at 139-40,
. The Turley rule provides that a court must examine the following factors to determine if, after an insurer’s denial, an insured’s performance of its contractual duty is deficient: ''(1) the initial notice was adequate to put the insurer on notice of potential liability under the policy, (2) the nondisclosed (or later-revealed) facts were so material that they should have been reported, (3) the notice was sufficient for the insurer’s investigation and discovery of all the facts relative to its potential liability; and (4) the insurer’s reasonable investigation could have uncovered the excluded information.”
. In Cagle, the defendants insured a business for director liability. National Union Fire Ins. Co. of Pittsburgh, Pa. v. Cagle,
. The Policy states that it covers the Property at issue in this litigation. Plntf.’s CSF Ex. 1 at IP 00968.
. The Hawai'i Supreme Court has used Black’s Law Dictionary to interpret terms in an insurance provision; accordingly, the Court will do likewise. See Hart v. Ticor Title Ins. Co., 126 Hawai’i 448, 457,
. While "immediate” may also mean "occurring without delay” or "instant”; Hawai’i Supreme Court cases acknowledge that a loss may result over a longer period of time. Sentinel Ins. Co. v. First Ins. Co. Of Hawaii, 76 Hawai’i 277, 298,
. In the absence of Hawai’i law or guidance, the Court examines California court decisions because Hawai'i courts tend to look to California for precedent on issues that have not yet been addressed in Hawai'i. Great Divide Ins. Co. v. AOAO Maluna Kai Estates,
. For examples of ensuing loss clause provisions, see Harbor Communities, LLC v. Landmark American Ins. Co., Civ. No. 07-14336-CIV,
. In Acme, a welding defect caused a kettle to rupture, causing molten zinc to escape and resulting in damage to thfe surrounding equipment.
. The Court notes that, in this case, Plaintiff and Defendant appear to agree that the moisture came from some outside source, not from humidity or condensation. Plntf.’s CSF at 2 ¶ 5, Dec. of Colin Murphy ¶¶ 4-5, Ex. 4; Def.’s CSF at 3 ¶ 2 (citing Plntf.'s CSF Ex. 3 at IP 00962).
. The Fifth Circuit also noted in Aetna that the defendant seemed to concede that the ensuing loss clause would "protect the insured where loss from water damage ensued from an excluded loss, e.g., if a rusty pipe burst or if a rotted wall opened and admitted rain.” Aetna,
. The Court declines to examine whether or not the pollution exclusion actually applies to the leaching of the arsenic from the canee. Such an examination would require this Court to interpret the meaning of terms like "pollutant” that have been heavily litigated in state and federal courts throughout the country. See Apana v. TIG Ins. Co.,
. Because Plaintiff appears to admit that "floor deflection and cracks in the walls” are not in dispute in this lawsuit, the amount of damage attributable to the arsenic will likely need to be determined at trial.