LONNIE WHITTAKER v. BONNIE WHITTAKER, 2003 ABPC 62

Whittaker v. ING Western Union Insurance Company, 2003 ABPC 62 Date: 2003 03 31 Docket: 0102100698 IN THE PROVINCIAL COURT OF ALBERTA BETWEEN: LONNIE WHITTAKER and BONNIE WHITTAKER Plaintiffs - and - ING WESTERN UNION INSURANCE COMPANY Defendant JUDGMENT OF THE HONOURABLE JUDGE A.H. LEFEVER COUNSEL : Brian R. Hougestol for the Plaintiffs Bea Boutcher, Agent for the Defendant Introduction [ 1 ] This is a claim to be indemnified under a policy of insurance for damages to a residence caused by water.

Facts [ 2 ] Lonnie Whittaker and Bonnie Whittaker (the “ Whittakers ” ) purchased a contract of insurance on their home at 9017-117 Avenue, Grande Prairie, Alberta (the “ policy ” ) from ING Western Union Insurance Company ( “ ING ” ). [ 3 ] On July 25, 2001 Lonnie Whittaker discovered that the sump hole of a sump pump installed in the basement of the home was full of water, but was not overflowing the sump hole. Mr. Whittaker jarred the float of the sump pump and it started to pump. His admitted evidence was that: “ The float switch wasn ’ t working which caused the sump pump not to work.

The weeping tile was full of water and pressured through

the floor slab of the basement floor. ” [ 4 ] Damage to the value of $2,540.40 was suffered by the Whittakers. They claim this loss less a $500.00 deductible provided in the policy. There is no issue over the Whittakers having filed a Proof of Loss in a timely manner. [ 5 ] The policy provides the following

definitions: “ Ground Water means water in the soil beneath the surface of the ground, including but not limited to water in wells, underground streams and percolating water. ” “ Surface Waters means water on the surface of the ground where water does not usually accumulate in ordinary watercourses, lakes or ponds. ” [ 6 ] The policy defines the risk which is insured in the following language: “ You are insured against All Risks of direct physical loss or damage subject to the exclusions and conditions of this policy. ” [ 7 ] There then follows a list of some 21 exclusions under the heading LOSS OR DAMAGE NOT INSURED, some of which include a number of sub-definitions.

Of particular relevance to this case is Exclusion 17 which states: “ LOSS OR DAMAGE NOT INSURED We do not insure loss or damage: 17. caused by water unless the loss or damage resulted from (my emphasis): (

a) the sudden and accidental escape of water from a watermain; (

b) the sudden and accidental escape of water or steam from within a plumbing, heating, sprinkler or air conditioning system or domestic water container, which is located inside your dwelling; (

c) the sudden and accidental escape of water from a domestic water container located outside your dwelling but such damage is not covered when the escape of water is caused by freezing; (

d) water which enters your dwelling through an opening which had been created suddenly and accidentally by an Insured Peril other than water damage; (

e) water from the accumulation of ice or snow on the roof or eaves trough, which enters the dwelling through a roof; but we do not insure loss or damage:

(

i) caused by freezing during the usual heating season: • within an unheated portion of your dwelling, or • if you have been away from your premises for more than 4 consecutive days, unless you had arranged for a competent person to enter your dwelling daily to ensure that heating was being maintained or if you had shut off the water supply and had drained all the pipes and appliances, in which case you would still be insured; (ii) caused by continuous or repeated seepage or leakage of water; (iii) caused by the backing up or escape of water from a sewer, storm drain, drain, sump or septic tank (my emphasis); (iv) caused by ground water or rising of the water table (my emphasis); (

v) caused by surface waters including flood, unless the water escapes from a watermain or from a domestic water container located outside your dwelling; (vi) caused by shoreline ice build-up or by water-borne ice or other objects, all whether driven by wind or not; (vii) to a watermain; (viii) to a system or appliance from which the water escaped; (ix) occurring while the building is under construction or vacant even if we have given permission for construction or vacancy. ” [ 8 ] The Whittakers and ING entered into a modification of the policy by way of an endorsement to the policy under the title “ Water Damage Extension Endorsement - Sewer Back-Up (13) ” (the “ endorsement ” ) which was in place at the date of loss.

The endorsement provided as follows: “ Water Damage Extension Endorsement If “ Water Damage Extension Endorsement ” is shown on your Coverage

Summary page, it is agreed that: “ The following additional subparagraphs are added to paragraph 28 (

a) under “ Loss or Damage Not Insured ” -

Section I: • Item (

f) is added to the list of causes of loss or damage that are included in the peril (my emphasis): (

f) the backing up or escape of water from a sewer, storm drain, drain, sump or septic tank.

• item (iii) ‘ caused by the backing up or escape of water from a sewer, storm drain, drain, sump or septic tank ’ in the list of circumstances, in which loss or damage is not insured, is not applicable. The Amount of Insurance that is granted by this endorsement is subject to your policy limits, unless a specific amount of insurance for this endorsement is shown on the Coverage

Summary page. All other terms, conditions, provisions,

definitions and exclusions of the policy to which this endorsement applies remain unchanged. ” [ 9 ] For purposes relevant to this action, the following sets forth the insured risks and exceptions to that risk in Policy after incorporating the endorsement: “ Ground Water means water in the soil beneath the surface of the ground, including but not limited to water in wells, underground streams and percolating water. ” “ Surface Waters means water on the surface of the ground where water does not usually accumulate in ordinary watercourses, lakes or ponds. ” “ You are insured against All Risks of direct physical loss or damage subject to the exclusions and conditions of this policy. ” “ LOSS OR DAMAGE NOT INSURED We do not insure loss or damage: 17. caused by water unless the loss or damage resulted from (my emphasis): (

a) the sudden and accidental escape of water from a watermain; (

b) the sudden and accidental escape of water or steam from within a plumbing, heating, sprinkler or air conditioning system or domestic water container, which is located inside your dwelling; (

c) the sudden and accidental escape of water from a domestic water container located outside your dwelling but such damage is not covered when the escape of water is caused by freezing; (

d) water which enters your dwelling through an opening which had been created suddenly and accidentally by an Insured Peril other than water damage; (

e) water from the accumulation of ice or snow on the roof or eaves trough, which enters the dwelling through a roof; (

f) the backing up or escape of water from a sewer, storm drain, drain, sump or septic tank. but we do not insure loss or damage:

(

i) caused by freezing during the usual heating season: • within an unheated portion of your dwelling, or • if you have been away from your premises for more than 4 consecutive days, unless you had arranged for a competent person to enter your dwelling daily to ensure that heating was being maintained or if you had shut off the water supply and had drained all the pipes and appliances, in which case you would still be insured; (ii) caused by continuous or repeated seepage or leakage of water; (iv) caused by ground water or rising of the water table (my emphasis); (

v) caused by surface waters including flood, unless the water escapes from a watermain or from a domestic water container located outside your dwelling; (vi) caused by shoreline ice build-up or by water-borne ice or other objects, all whether driven by wind or not; (vii) to a watermain; (viii) to a system or appliance from which the water escaped; (ix) occurring while the building is under construction or vacant even if we have given permission for construction or vacancy. ” [ 10 ] The admitted evidence establishes the following: (

a) In the 2 ½ days before July 25, 2001, the City of Grande Prairie experienced heavy rain; (

b) The Whittakers ’ home contained a sump pump in the basement; (

c) On July 25, 2001, when Lonnie Whittaker arrived at his home, the sump pump was not operating, and the sump was full of water; (

d) The float switch of the sump pump was not working, which caused the sump pump to fail to pump water; (

e) By simply jarring the float of the sump pump, Lonnie Whittaker was able to cause the sump pump to begin pumping; and (

f) The water in the basement came through the concrete floor as a result of water pressure underneath the floor slab which was caused by the failure of the sump pump to operate.

[ 11 ] At the most general level, the purpose of a sump pump installed within the basement of a residence is to remove water from the basement into a drainage system to remove the water from the home. That however does not adequately describe the functioning of the sump pump. [ 12 ] Water collects naturally outside of the basement of most residences in Alberta, from rain which falls naturally upon the ground and from melting snow. Water also collects from drainage of water applied by a homeowner to grow lawns, trees and vegetable gardens.

In addition, if a house has had installed eaves troughs and downspouts to collect rain which falls upon the roof of the residence, that water may collect outside the basement walls unless some other form of drainage is provided. For example, downspouts may be connected to a storm sewer system such that the water once collected flows directly through a series of collector troughs, downspouts and pipes into the storm water system. [ 13 ] In other cases, downspouts are structured in such a manner to take the collected water away from the dwelling.

In this latter instance, it is common for the property to be landscaped or contoured in such a way that the water so collected flows away from the residence into an over-the-surface drainage system. [ 14 ] Cement basements in Alberta, and particularly in Grande Prairie, Alberta, are normally constructed in a particular manner. First the area for the basement is excavated. Secondly, the elevations for the basement are determined, so that basement windows will normally be above ground level. Thirdly, cement footings are poured on undisturbed ground in the outline of the basement.

Trenches are excavated for the installation of normal utility services including potable water supply, sanitary sewer connector lines, and storm sewer connector lines. The sewer services almost always enter the residence at a grade lower than the footings so that through gravity, sewage will drain from the residence to larger sewer pipes on public property which serve many residences. [ 15 ] After the footings have cured, the basement walls are erected upon the footings.

On the exterior of the cement walls a membrane impervious to water is installed, and adjacent to and at the elevation of the footings, weeping tile is installed so that water can migrate around the exterior of the basement through the weeping tile.

The purpose of the weeping tile is to provide a drainage system for the water which has collected outside the basement walls. [ 16 ] In order to finally deal with the collected water, there is usually installed in the weeping tile a valve which allows water to migrate into the basement of the residence at a level below the residence basement concrete floor slab to be collected in an excavated depression called a sump. In older houses, this sump was often connected to the storm sewer outlet within and below the basement floor, through which the collected water would be drained from the residence.

In newer homes, drainage may no longer be drained into the municipal sewer system, as a result of which the drainage is designed to allow the collected water to flow outside the house below the grade of the footings. [ 17 ] In effect, the purpose of the weeping tile is to collect and bring water into the residence below the cement floor of the basement, and to allow that water to be evacuated from the residence through a drainage system. [ 18 ] To assist in evacuating water which has collected within the normal collector systems constructed in a residence where a gravity flow of water may not suffice, sump pumps can be used.

A sump pump is a mechanical device which operates to pump water from the sump into the drainage system through which the water is evacuated from the sump and from the residence without that water causing any damage to the basement or any property stored in the basement. [ 19 ] If a sump pump is not operating properly, water evacuation does not occur, causing the water to fill the sump and backup in the weeping tile portion of the drainage system, leading to possible intrusion of water into the residence through basement walls and foundations due to the inoperable sump pump.

The Issue [ 20 ] This case raises the issue of whether the loss experienced by the Whittakers was included within the “ Water Damage Extension Endorsement ” which extended coverage to loss or damage caused by “ the backing up or escape of water from a sewer, storm drain, drain, sump or septic tank ” .

The Law Principles relevant to interpreting insurance contracts: giving effect to the intention of the parties, the contra proferentem rule, and applying popular meaning [ 21 ] In Goodman v. Royal Insurance Co. of Canada , 1997 CanLII 22745 (MB CA) , [1997] M.J. No. 268, (Man. C.A.) , application for leave to appeal dismissed, [1997] S.C.C.A. No. 396 (S.C.C.), ( “ Goodman ” ) Helper J.A. cited Consolidated-Bathurst Export Limited v. Mutual Boiler and Machinery Insurance Company , [1980] 1 S.C.C. 888 ( “ Consolidated ” ) on this point ( Goodman at para. 17 ): “ Consolidated-Bathurst Export Limited v.

Mutual Boiler and Machinery Insurance Company , 1979 CanLII 10 (SCC) , [1980] 1 S.C.R. 888 , sets out the steps that must be followed in interpreting an insurance contract:

(1) Effect must first be given to the intention of the parties, to be gathered from the words they use, just as in any other contract.

(2) Step two is the application, when ambiguity is found, of the contra proferentem doctrine by which any doubt as to the meaning and scope of the excluding or limiting term is to be resolved against the party who has inserted it and who is now relying upon it. ” [ 22 ] Another cornerstone of the relevant law stated by Helper J.A. was ( Goodman at para. 19 ): “ [i]t is not disputed that words in an insurance policy are to be interpreted according to their plain, ordinary and popular meaning. ” Onus of proof [ 23 ] In Shepherd v.

Wawanesa Mutual Insurance Co. (1998), 1998 ABQB 1040 (CanLII) , 236 A.R. 28 , 9 C.C.L.I. (3d) 293 (Alta. Q.B.) , ( “ Shepherd ” ) (rev ’ d on unrelated grounds), (2000), 2000 ABCA 287 (CanLII) , 266 A.R. 259 , 23 C.C.L.I. (3d) 107 (Alta. C.A.) , Belzil J. in discussing the evidentiary onus of proof relevant to relying upon an exclusionary clause stated (para. 47): “ The law in this area was succinctly stated by Matheson, J. in the case of Kass v.

State Farm Fire & Casualty Co. (1989), 1989 CanLII 3382 (AB KB) , 57 D.L.R. (4 th ) 290 at p. 293 wherein he stated the following: In this case, with respect to the dwelling insurance, the defendant insurer must bear the burden of establishing that the facts of this case bring this claim within the exclusionary clauses of the policy. The defendant is the architect of the policy and it is for the defendant to satisfy the court that on the balance of probabilities, based on the whole evidence, the proper inference to be drawn is that the claim falls within the exclusions: Holmes v.

Sun Life All ’ ce (1977), 1977 CanLII 2764 (AB KB) , 6 A.R. 171 , [1977] I.L.R. I-904 (Alta. S.C.T.D.) (Moore J.) . In the same case, Moore J. (as he then was) at p. 181 stated: Dechene, J. found that while the exclusionary clause was always to be construed strictly against its maker, the insurer was only required to prove by a preponderance of evidence that the case fell within the exclusion. ” causes versus proximate causes of loss [ 24 ] The case law in this area is very fact specific. In certain instances, one event may appear linked to another, and the court has to ascertain the precise cause of the loss.

In this analysis, the courts have determined that the proximity of the cause is not determinative.

[ 25 ] In Shepherd , in discussing the relationship of proximate cause relative to exclusion clauses, Belzil J. stated (at paras.48-49): “ The Supreme Court of Canada has recognized that losses which would otherwise be covered by a policy of insurance may be excluded by a properly worded exclusionary clause. In addition, it will not avail the Plaintiff to argue that an exclusion relates to a cause as opposed to a proximate cause. In the case of Ford Motor v.

Prudential Assurance Company (1959), 1959 CanLII 11 (SCC) , 18 D.L.R. (2d) 273 , at p. 278, Judson, J. said the following: The principle to be deduced is no more than this - that liability for the consequences of what the Court holds to be the proximate cause of the loss may be negatived by a properly framed clause of exclusion and it seems to me that if it is found, as a matter of construction, that the causes specified in the clause of exclusion apply, then it is of no significance whether these are referred to as proximate causes, or simply causes. ” [ 26 ] Belzil J. articulated a comprehensive approach in the following language (at para 50): “ . . . [i]n my view, it is necessary to look at the policy of insurance as a whole and to derive the natural meaning of the words in order to determine whether or not this loss was covered or excluded. ” Concurring versus contributing causes [ 27 ] In Goodman the concept of concurring causes was expressed by Helper J.A. as follows (at para.48): “ There is a litany of cases which stand for the proposition that where there are concurring causes of damage, and one of the concurring causes is excluded by the terms of the policy, the damage is not recoverable.

See: Lizotte v. Traders General Insurance Company , 1984 CanLII 511 (BC SC) , [1985] I.L.R. 1-1874 (B.C.S.C.) , affirmed [1986] I.L.R. 1-2076 (B.C.C.A.) ; Pavlovic v. Economical Mutual Insurance Co . (1992), 9 C.C.L.I. (2d) 17 (B.C.S.C.) , appeal allowed (1994), 1994 CanLII 2834 (BC CA) , 28 C.C.L.I. (2d) 314 (B.C.C.A.) ; Wayne Tank and Pump Co. Ltd. v. The Employer ’ s Liability Assurance Corporation Ltd. , [1973] 3 All E.R. 825 (C.A.) ; Clark ’ s Chick Hatchery Ltd. v. Commonwealth Insurance Company , 1982 CanLII 4206 (NB CA) , [1982] I.L.R. 1-1529 (N.B.C.A.) ; and Saskatchewan Wheat Pool v.

Royal Insurance Company of Canada et al. (1987), 28 C.C.L.I. 40 (Sask. Q.B.) , affirmed (1989), 1989 CanLII 4778 (SK CA) , 64 D.L.R. (4 th ) 135 (Sask. C.A.) . ” [ 28 ] In Goodman , the Court of Appeal found that the trial judge had erred in interpreting the scope of several exclusions.

The trial judge considered a clause excluding coverage from damage caused by “ flood, surface water, spray, waves. . . ., ” and a separate clause excluding damage caused by flood, concluding that the two clauses did not effectively serve to negate liability in circumstances where water had flooded the insured ’ s basement. [ 29 ] There was no dispute that water had entered the insured ’ s basement, but the evidentiary issue concerned the source of that water.

The Plaintiff argued that surface waters became ‘ ditch water ’ upon overflowing a ditch, and it was that overflowing ditch water that had caused the damage.

The trial judge ’ s finding that the exclusion did not apply, on the basis that “ surface water ” did not include flood water which overflowed a ditch, was reversed by the Court of Appeal. [ 30 ] Rather, the Court of Appeal concluded that the evidence did not substantiate a conclusion that no surface water made its way into the basement, and at the same time, that the source of the water, be it from the flooding ditch, surface water from the yard, or surface water from adjoining fields, could not be ascertained.

[ 31 ] In the result, the Court of Appeal held that an exclusion pertaining to one of the concurring causes served as the basis for denying liability. [ 32 ] The factual situation with respect to concurring causes is dissimilar from a situation in which a chain of events contribute to a loss. In the latter instance, an excluded event may indirectly contribute to the loss, and yet, the court may not label it as having caused the loss for the purposes of denying coverage. This concept was discussed at length in Rivard v.

General Accident Assurance Co. of Canada (2002), 2002 MBCA 70 (CanLII) , 38 C.C.L.I. (3d) 202 , 166 Man. R. (2d) 39 (Man. C.A.) ( “ Rivard ” ) which quoted extensively and with approval to Pavlovic v. Economical Mutual Insurance Co. (1994), 1994 CanLII 2834 (BC CA) , 28 C.C.L.I. (2d) 314 (B.C.C.A.) , where Monnin J.A. stated (at paras. 24 - 25): “ Pavlovic was a case dealing with escaping water. The insured ’ s home was damaged when a line connecting the home to a city watermain ruptured and water escaped into the foundation soil causing subsidence and consequent settling, distortion and damage to the building.

The trial judge dismissed the insured ’ s claim. He found that exclusion clauses relating to settlement of the buildings, earthquakes, landslides or other earth movements and intentional acts of the insured did not apply.

He did conclude, however, that coverage was excluded by a clause identical to exclusion clause 32 before us. [clause 32 in Rivard excluded coverage for damage “ caused by seepage or leakage of water below the surface of the ground including through sidewalks, driveways, foundations, walls, basement or other floors . . . or any other openings, unless the loss or damage resulted from the escape of water from a public watermain, swimming pool or equipment attached. ” ] This was so, because he found that the water had not escaped from a public watermain or a swimming pool.

The arguments on appeal dealt, in part, with whether the escaping water was the cause of the damage or was simply one element of that cause. After setting out the relative position of the parties, Finch J.A. ’ s analysis leads him to the following conclusion at paras. 18-26: It is clear from the evidence, and from the trial judge ’ s findings, that a chain of physical events led to the appellant ’ s damages. . . .

Looking at this whole chain of events, beginning with the failure of the pipe, to the settlement and damage of the house, it is evident that the migration or percolation of water was one of several necessary links in the chain of causation. Equating migration or percolation of water through the soil with “ seepage ” or “ leakage, ” as I think one may, one could say that the loss or damage was caused by the excluded event. To do so, however, is to select as the cause of the loss, only one event in the causal chain. . . .

It could be argued with at least equal force, if only one of several events is to be selected, that the event occurring either first or last in time should be chosen. . . . In these circumstances, I do not think one can fairly say that the appellant ’ s loss and damage were ‘ caused by ’ the leakage of water below the ground. At most all one can say is that the leakage of water was an indirect cause of the loss, and one of many other contributing causes.

It would be more accurate to say that the loss was caused by the whole chain of events, of which leakage of water underground was a contributing or indirect cause, and that the chain of events was set in motion by the rupture or failure of the water service line from an unknown cause Applied to the circumstances of this case, the meaning of exclusion (12) is, at best, ambiguous. It leaves open the question whether the

Applied to the circumstances of this case, the meaning of exclusion (12) is, at best, ambiguous. It leaves open the question whether the loss is excluded where seepage or leakage is a ‘ contributing cause ’ as opposed to the only cause. Apt language to achieve the end argued for by the insurer is seen in the policies considered in some other cases. Similar exclusion clauses have used language such as ‘ cause directly or indirectly, ’ or ‘ caused by, resulting from, contributed to or aggravated by. ’ . . .

Looking at the exclusion relied on, in the context of the policy as a whole, I think the ordinary reader would understand it to refer to water damage to insured property, and to mean that the insurer would not be responsible for loss or damage that was caused directly or proximately, by the leakage or seepage of water. I do not think the ordinary reader would understand, where the seepage or leakage was one of several events in a causal chain, or where it was indirectly responsible for the damage, that the insurer would not be liable to pay. . . . . . .

To succeed the insurer must prove that the events causing the loss or damage are clearly within the language of the exclusion. At least, the language of exclusion (12) is ambiguous, insofar as it relates to the facts of this case, and must per force be construed against the insurer. ” [ 33 ] In Robson v. Mennonite Mutual Fire Insurance Co. of Saskatchewan (1987), 1987 CanLII 4599 (SK KB) , 60 Sask. R. 36 , 27 C.C.L.I. 127 (Sask.

Q.B.) ( “ Robson ” ), an insurer denied coverage for water related damage based upon a clause in an all risks policy of insurance which excluded loss or damage caused by water below the ground, including that which exerted pressure on foundations. The incident resulting in the relevant loss involved a heavy rain that had resulted in sewer back up.

Whereas the insurer admitted partial liability, indemnifying the insured for the damage caused by water that had entered the insured ’ s residence through the basement drain, the insurer argued that further damage to the basement floor was excluded from coverage. [ 34 ] The damage for which coverage had been denied consisted of cracks, pop-outs, and a large heave in the basement floor. Both insured and insurer had agreed that this damage was not caused by the entry of water through the basement drain.

Rather, because the sewer system had been unable to handle all of the subsurface runoff from a heavy rain, some water backed up from the sewer main to the sewer line beneath the basement floor, causing water back up through the basement drain. [ 35 ] The loss for which the insurer denied coverage also resulted from the insufficient capacity of the sewer system, but was tied to the ground becoming saturated with surface water which was then absorbed into the soil.

Subsurface water that would usually collect in the weeping tiles surrounding the perimeter of the insured ’ s residence, and be carried away by the city sewer system, instead made its way through the weeping tiles, and into the soil under and around the basement floor. The pressure exerted by the accumulation of this subsurface water beneath the basement floor caused the damage to the concrete for which the insurer denied liability. [ 36 ] Robson examined the principles elaborated upon in a number of cases including Ford Motor Co. of Canada Ltd. v. Prudential Assurance Co.

Ltd. et al (1953), 1959 CanLII 11 (SCC) , 18 D.L.R. (2d) 273 , and Oakleaf v. Home Insurance Ltd. (1958), 1958 CanLII 136 (ON CA) , 14 D.L.R. (2d) 535 , following which the Robson court applied the test set out in Ford , which asked the question whether it was clear that the parties contemplated the relevant occurrence, and that losses or damage resulting therefrom should be excluded. [ 37 ] The Oakleaf test was also applied, requiring the court to employ “ the common-place tests which the ordinary business man conversant with such matters would adopt: ” ( see Robson at para. 6 ).

In applying both the Ford and Oakleaf tests in Robson at p. 6, Justice Goldenburg J. stated (at para. 6): “ I cannot conceive how the parties might have contemplated the exclusion as urged by the insurer. It is clear that under ‘ all risks, ’ the parties contemplated coverage for a situation where (1) the sewer did not have the capacity to handle the excess water and (2) as a result water backed up through a basement drain.

On the bare words of the exclusion clause it is not clear that the parties contemplated an exclusion for a situation where (1) the sewer did not have the capacity to handle the excess water and (2) as a result water accumulated at the foundation of the house from two sources; (

i) the saturated soil, and [sic] which water would otherwise be carried away through the weeping tiles, (ii) the back up of water through the weeping tiles. There are no words in the exclusion clause such as ‘ irrespective of the cause, ’ or ‘ however caused ’ or similar wording. In my opinion the exclusion of such a loss was not contemplated by the parties.

Applying the common-place tests of the conversant ordinary business man, I arrive at the same result. Applying another approach, the exclusion clause is ambiguous. That being the case, any ambiguity must be resolved in favour of the insured. British Columbia Ferry Corporation v. Commonwealth Insurance Co. et al, supra . [ (1986), 14 C.C.L.I. 216 ]. ” Applying the law to the facts [ 38 ] The reasoning of Pavlovic which was approved in Rivard , seems particularly relevant to the present facts.

A reading of the insured ’ s statement suggests that a number of events occurred following the backing up of water in the sump tank. These related events contributed to the loss, but the cause of the damage was the backing up of water in the sump. To put it another way, had the sump pump not failed, the loss would not have occurred.

To allow the insurer to rely upon a clause excluding damage relating to continuous or repeated seepage or leakage of water, or the clause excluding damage caused by ground water or rising of the water table, in the face of a specific endorsement that provides coverage in the event of backing up or escape of water from a sewer, storm drain, sump or septic tank, appears very much at odds with a plain reading of the policy, and the purpose of the endorsement. [ 39 ] In the present case, the Robson reasoning has even greater impact, considering the fact that the insureds had specifically purchased an endorsement which provided coverage for backing up or escape of water from a sump.

The endorsement cannot be properly restricted by the exclusion pertaining to continuous seepage or leakage, nor by the exclusion pertaining to ground water or rising of the water table, nor by that excluding damage caused by surface waters, without clearer language. [ 40 ] A plain reading of the endorsement does not communicate an intention to restrict the backing up or escape of water from a sump or septic tank to resulting water damage which occurs only as a result of water backing up through the basement drain.

On the present facts, the backing up of the sump led to the type of circumstances and resulting loss discussed by the court in Robson , supra , and there is no basis for reaching a conclusion juxtaposed to the one articulated in that case. [ 41 ] In my opinion, the Whittakers have established that the loss or damage claimed under the policy was within the insured risk of the policy. They should be indemnified to the amount of the claim. Conclusion [ 42 ] In the result, there will be judgment for the Plaintiffs in the amount of $2,040.40. [ 43 ] The written submissions do not address the issue of costs.

Liberty is reserved to the Plaintiffs to apply for a costs order. Dated at the City of Grande Prairie , in the Province of Alberta this 31 st day of March , 2003. Judge A.H. Lefever