OPINION
Plaintiff Theresa Bao has brought suit against defendant Liberty Mutual Fire Insurance Company (“Liberty”) alleging breach of contract arising out of a denial of insurance coverage. (Compl. ¶¶ 6-7.) Plaintiff seeks damages in the amount of $85,000 plus interest and the costs of this action. (Id. ¶ 9.) Defendant has moved for summary judgment, and plaintiffs opposition and defendant’s reply have followed. For the reasons detailed below, I will grant defendant’s motion.
I.
The evidence on the summary judgment record is as follows. On or about June 2, 2006, a strong wind and rain storm hit the Baltimore region, and a substаntial amount of water entered plaintiffs home. (Pl.’s Opp’n Mem. at 1.) Prior to the loss, plaintiff had entered into an all risk insurance policy with Liberty, entitled Liberty Mutual H03 Homeowners Deluxe Policy (“the policy”). (Id., Ex. 6, Liberty June 27, 2006 Denial Letter). The policy had an effective period from March 22, 2006 through March 22, 2007, and was thus in effect at the time of the loss. (Id.) Immediately following the loss, plaintiff contacted Liberty, which allegedly provided the name and number for “Service Master Baltimore,” a Liberty-preferred clean-up contractor. (Id. at 2.) Service Master Baltimore, which plaintiff hired to assist in the clean-up of the property damage on June 4, 2006, reported that the “[g]lass door broke[,] causing rain water to come into the home.” (Id. (citing Ex. 2, Service Master Baltimore Invoice).)
Plaintiffs and Liberty’s licensed certified public adjusters met to inspect the damage to the property on June 13, 2006.
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Liberty’s adjuster, Tim Iannuzzi of North American Claims Specialists (“NCAS”), concluded after his June 13, 2006 inspection that the glass door was not broken by an object blown by the wind, but by pressure exerted on the glass door by accumulated water in a basement stairwell. (Iannuzzi Aff. ¶¶ 8-9.) Iannuzzi reported that physical evidence at the scene indicated that “approximately 10-15 inches of water accumulated in the bottom of the basement walkout steps[,] [while] [i]nside the home there were water marks approximately 10-12 inches high on the walls and door frames.” 2 (Id. ¶ 9.) Because Liberty concluded that the pressure exerted by the excessive water caused the glass to break, it denied plaintiffs claim on June 27, 2006. (Pl.’s Opp’n Mem., Ex. 6.) Liberty cited SECTION I — EXCLUSIONS to justify its denial:
1. We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence of loss ...
c. Water Damage, meaning:
(1) Flood, surface water, waves, tidal water, overflow of a body of water, or spray from any of these, whether or not driven by wind;
(2) Water which backs up through sewers or drains or which overflows from a sump; or
(3) Water below the surface of the ground, including water which exerts pressure on or seeps or leaks through a building, sidewalk, driveway, foundation, swimming pool, or other structure.
(Id. (citing Ex. 1, “Insurance Policy” at 8).)
II.
Summary judgment is appropriate when there is no genuine issue of material fact and the moving party can demonstrate that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A material fact is one that may affect the outcome of the suit.
See Anderson v. Liberty Lobby, Inc.,
Under Maryland law, “insurance policies are interpreted in the same manner as contracts generally.”
Catalina Enters. v. Hartford Fire Ins. Co.,
Insurance policies “are not in the first instance construed most strongly against the insurer.”
United Capitol Ins. Co. v. Kapiloff,
III.
The issue on summary judgment is whether Liberty has established as a matter of law that plaintiffs loss is excluded pursuant to the policy. An insurer has the burden of establishing that the policy excludes a particular loss.
Nat’l Elec. Mfrs. Assoc. v. Gulf Underwriters Ins. Co.,
Liberty contends that the policy expressly excluded plaintiffs loss. (Def.’s Mem. at 7.) Plaintiffs policy with Liberty excluded coverage “for loss caused directly or indirectly by [water damage,] ... regardless of any other cause or event contributing concurrently or in any sequence of loss.” (Insurance Policy at 8 (Section I — Exclusions(l.)(c)).) The policy defined “water damage” in relevant part as “[Qlood, surface water, waves, tidal water, overflow of a body of water, or spray from any of these, whether or not driven by wind.” (Id. (Section I(l.)(c)(l)) (emphasis added).) Plaintiffs adjuster, Gould, reported, and plaintiff has argued, that the loss was caused in part by both “rain that continued to fall for the duration of the storm” and “a pool of rain that had gathered at the bottom of the stairwell.” (Gould Aff. ¶ 8; Pl.’s Opp’n ¶ 7; PL’s Opp’n Mem. at 2, 5.) Liberty does not dispute that these were the causes. (Def.’s Reply at 2.) Accordingly, the parties’ textual arguments cеnter around whether these sources of water constitute “water damage” as defined in the policy.
Liberty argues persuasively that a pool of rainwater constitutes “surface water,” which the policy included under its definition of “water damage.”
(Id.
at 2-3.) Maryland courts have held that “surface wa
Plaintiff argues in opposition that because “falling rain” or “rainwater” are “specifically not listed as part of the water damage definition in the policy,” it is ambiguous whether a pool of rain that has collected at the bottom of the stairwell is covered under the “water damage” definition. 3 (Pl.’s Opp’n Mem. at 9.) Although plaintiff is correct that “rain” is not specifically included in the policy’s definition of “water damage,” in light of the case law discussed supra, I аm persuaded that a pool of rainwater constitutes “surface water,” which specifically falls under the definition of “water damage.” Accordingly, because “water damage” was “directly or indirectly” the cause of plaintiffs loss, I conclude that the loss fell under the exclusionary clause of the policy. (See Insurance Policy at 8.)
Notwithstanding the applicability of the exclusionary clause, Plaintiff makes two arguments for insurance coverage in the instant case. First, plaintiff argues that the exclusionary clause should not apply because the loss from water damage was caused by the “direct force of wind,” and thus is “specifically included as a covered peril in another section of the contract.” (PL’s Opp’n Mem. at 9.) Plaintiff cites the following language:
SECTION I — PERILS INSURED AGAINST:
COVERAGE C — PERSONAL PROPERTY ...
2. Windstorm or Hail.
This peril does not include loss to the property contained in a building caused by rain, snow, sleet, sand or dust unless the direct force of wind or hail damages the building causing an opening in a roof or wall and the rain, snow, sleet sand, or dust enters through this opening.
(Insurance Policy at 7 (emphasis added).) Plaintiff has, however, overlooked the critical language in the ellipses directly following “COVERAGE C — PERSONAL
Second, plaintiff argues that even if the exclusionary clause is found to be applicable, “rules of causation would still effectuate coverage for damage in the current case.” (PL’s Opp’n Mem. at 10.) Specifically, plaintiff asserts that this court should follow an “efficient proximate ' cause” analysis, under which “the cause that had set the other one in motion, the predominant cause, would be the cause to which the loss would be attributed.” 4 (Id.) According to plaintiff, only after wind (the predominant cause) allegedly blew an object into the glass door did the door break, setting in motion the flooding of rainwater (the other cause) into the basement. Thus, plaintiff contends that the “Perils” section covers the. loss at issue notwithstanding the applicability of the exclusionary clause because the “direct force of wind” was the efficient proximate cause. (Id.)
Plaintiffs argument requires the rejection of the “concurrent causation” clause in the policy’s exclusion section, which states that where there is an excluded cause, Liberty does not cover loss “regardless of any other cause or event contributing concurrently or in any sequence of loss.” (Insurance Policy at 8.) Plaintiff concedes that in
third party claims,
Mаryland courts have upheld the validity of “concurrent causation” clauses, while rejecting an “efficient proximate cause” analysis: “ ‘proper focus remains on the language of the exclusionary clause, not principles of causation, and stands for the proposition that an exclusionary clause may apply even where one of the causes contributing to the loss was not within the exclusion.’ ” (Pl.’s Opp’n Mem. at 10 (quoting
Nationwide Mut. Ins. Co. v. Nash,
No. 07-209,
Plaintiff cites case law from California, West Virginia, and Washington supporting the application of the “efficient proximate cause” analysis. In
Garvey v. State Farm Fire & Casualty Co.,
[T]he reasonable expectations of the insurer and the insured in the first party property loss portion of a homeowner’s policy — as manifested in the distribution of risks, the proportionate premiums charged and the coverage for all risks except those specifically excluded — cannot reasonably include an expectation of coverage in property loss cases in which the efficient proximate cause of the loss is an activity expressly excluded under the policy. Indeed, if we were to approve of the trial court’s directed verdict, we would be requiring ordinary insureds to bear the expense of increased premiums necessitated by the erroneous expansion of their insurers’ potential liabilities.
Id.,
Similarly, in
Murray,
Finally, Washington courts have also applied the efficient proximate cause analysis in first party claims cases. In
Kish v. Insurance Co. of North America,
In contrast, defendant cites other jurisdictions — namely Pennsylvania, Virginia, Wyoming, Missouri — that have upheld insurance policies’ concurrent causation clausеs, and rejected the efficient proximate cause rule, in first party property claims. In
T.H.E. Insurance Co.,
the court ordered summary judgment for the insurer because the insurance policy did not cover mud and water damage to a bowling alley following a heavy rainstorm.
The
T.H.E. Insurance Co.
court upheld the concurrent causation clause to exclude insured’s loss from coverage, rejecting insured’s argument that Pennsylvania law had embraced the efficient proximate сause doctrine.
Id.
at 292-93. Although there was no Pennsylvania Supreme Court decision directly on point, the court cited numerous other jurisdictions that had held that the efficient proximate cause doctrine did not apply in the face of a similarly expansive qualifying lead-in clause.
Id.
at 293 (citing
Kane v. Royal Ins. Co. of America,
Similarly, in
Lower Chesapeake Associates v. Valley Forge Insurance Co.,
In
TNT Speed & Sport Center, Inc. v. American States Insurance Co.,
Because the question of whether the efficient proximate cause doctrine should apply in first party property claims is an
I conclude that the Maryland Court of Appeals would not apрly the efficient proximate cause rule, but would instead follow the plain language of the concurrent causation clause in the policy’s exclusion. I reach this conclusion for several reasons. First, as discussed
supra,
Maryland courts have rejected the efficient proximate cause rule for third party claims, and have not addressed the rule in any other context.
See Aragona,
Second, the case law plaintiff cites provides little support for applying the efficient proximate cause rule in the instant case. The policies in
Garvey, Murray, Kish,
and
Sunbreaker
did not have a lead-in clause like the one in the instant case, which stated explicitly that if a cause of loss is excluded under the policy, “[s]uch loss is excluded
regardless of any other cause or event contributing concurrently or in any sequence of loss.”
(Insurance Policy at 8 (еmphasis added).) Instead, the policies in these four cases stated simply that all risks of physical loss to the property were covered except as otherwise excluded or limited.
Garvey,
Furthermore, adoption of the efficient proximate cause test in
Garvey
and
Murray
was intended to establish a potential limit on coverage, not to expand it.
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In
Kish,
Finally, the numerous jurisdictions that have rejected the efficient proximate cause rule for first party claims — Pennsylvania, Virginia, Wyoming, Missouri, New Jersey, Utah, Nevada, and Arizona' — have persuasively prioritized the language of the exclusionary clause over principles of causation where a lead-in clause identical to the one in the instant case existed. Plaintiffs policy with Liberty excluded coverage “for loss caused directly or indirectly by [water damage,] ... regardless of any other cause or event contributing concurrently or in any sequence of loss.” (Insurance Policy at 8.) Just as was the case in these eight other jurisdictions, here “[t]he language of the lead-in clause ... by dеfinition negate[d] the efficient proximate cause doctrine.”
T.H.E. Ins. Co.,
For these reasons, I grant defendant’s motion for summary judgment. A separate order to that effect is being entered herewith.
ORDER
For the reasons stated in the accompanying Opinion, it is, this 27th day of February 2008
ORDERED
1. Defendant’s motion for summary judgment is granted; and
2. Judgment is entered in favor of defendant against plaintiff.
Notes
. Plaintiffs adjuster, Jeffrey Gould, also inspected the property on June 9, 2006. (Gould Aff. ¶ 6.)
. Iannuzzi reported that during the inspection, "Mr. Gould stated that the loss was due to surface water entering the basement through the sliding glass door.” (Iannuzzi Aff. ¶ 7.) Gould denies stating that "surface water” caused the loss, reiterating that wind damage and the resulting rain that entered the premises were the causes. (Gould Aff. ¶ 13.) Furthermore, Gould alleges that Ian-nuzzi refused to furnish any factual justification or documentation to support his conclusions, and that Liberty denied plaintiff’s insurance claim on June 27, 2006 prior to any submission of the personal property damages estimates. (Id. ¶ 10-11.) Because I conclude infra that "surface water” was a cause of the loss, these disputed facts are ultimately not material.
. Plaintiff initially points out that Liberty has justified its denial of coverage by describing the cause separately as "ground water” and "surface water.” (Pl.'s Opp’n Mem. at 9 (citing Ex. 4, Liberty March 24, 2006 Denial Letter; Ex. 6, Liberty June 27, 2006 Denial Letter).) Although this is true, because I conclude that the cause of the loss constituted "surface water,” Liberty’s June 27 Denial Letter was accurate (even if its March 24, 2006 denial letter was not).
. As one treаtise explains, "the efficient proximate cause rule permits a recovery under the policy where the loss occurs due to a loss from a covered peril which also sets into motion a chain of events occurring in tut unbroken sequence culminating in damage from an excluded peril.” E.
. Garvey justified applying the efficient proximate cause rule to first party property claims and the concurrent cause rule to third party tort claims with the following explanation:
[T]he 'cause’ of loss in the context of a property insurance contract is totally different from that in a liability policy. This distinction is critical to the resolution of losses involving multiple causes. Frequently property losses occur which involve more than one pеril that might be considered legally significant.... The task becomes one of identifying the most important cause of the loss and attributing the loss to that cause. On the other hand, the right to coverage in the third party liability insurance context draws on traditional tort concepts of fault, proximate cause andduty.... In liability insurance, by insuring for personal liability, and agreeing to cover the insured for his own negligence, the insurer agrees to cover the insured for a broader spectrum of risks.
However, because the policy in Garvey did not have a lead-in clause stating that coverage will be denied if there is an excluded cause of loss regardless of other causes, Garvey’s distinction is not relevant to the instant case.