On July 23, 2024, the Massachusetts Supreme Judicial Court held that an accumulation of rainwater on a roof is not considered “surface water.”
Regarding a flood sublimit in a commercial policy, the policyholder argued that surface water only included water that reaches the surface of the earth. In contrast, the insurer argued that the term surface water refers to all surfaces, not limited to surfaces of the earth, highlighting a literal interpretation of the word “surface” and pointing out the absence of the specific words “surface of the earth” or “ground” in the definition of “flood”.
The court looked to existing Massachusetts case law and cases from other jurisdictions. Observing that there’s no consistent interpretation and no clear majority position, the court found both of the parties’ proposed interpretations to be reasonable, holding that “surface water” is ambiguous and should not be interpreted to include rainwater that accumulated on the policyholder’s roof.
This post was originally published through Horst Krekstein & Runyon’s Property in 60 Seconds Newsletter. If you would like to receive future copies of that newsletter, please use this link to sign up.