Martinez v. American Family Mutual Insurance Co

COLORADO COURT OF APPEALS 2017COA15

Court of Appeals No. 16CA0456
Weld County District Court No. 15CV30103
Honorable Todd L. Taylor, Judge

Michael Martinez,

Plaintiff-Appellant,

v.

American Family Mutual Insurance Company, a Wisconsin Corporation,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division A
Opinion by CHIEF JUDGE LOEB
Davidson* and Plank*, JJ., concur

Announced February 9, 2017

Meier & Giovanini, LLC, Douglas Meier, Lakewood, Colorado, for Plaintiff-
Appellant

Campbell, Latiolais & Averbach, LLC, Kirsten M. Dvorchak, Colin C. Campbell,
Denver, Colorado, for Defendant-Appellee

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶1 In this insurance coverage case, plaintiff, Michael Martinez,

appeals the district court’s entry of summary judgment, pursuant

to C.R.C.P. 56(c), in favor of defendant, American Family Mutual

Insurance Company (American Family). We affirm.

I. Background and Procedural History

¶2 At all times relevant to this appeal, Martinez owned a home in

Erie, Colorado. The home had a finished basement with windows

below the ground, which were surrounded by window wells.

¶3 On August 3, 2013, there was a severe thunderstorm in Erie.

According to Martinez’s complaint, some of the heavy hail and rain

collected at the base of his window wells, and the hail at the base of

the window wells prevented the accumulating rainwater from

percolating into the ground. As alleged by Martinez, the rainwater

accumulated on top of the hail to such an extent that it eventually

overflowed the basement windows, seeped into the basement, and

caused substantial damage to his home and personal property.

¶4 Martinez filed a claim with his insurer, American Family. After

conducting an investigation, American Family concluded that the

damage to Martinez’s home was caused by either “flooding” or

1
 “surface water,” and was, therefore, expressly excluded from

coverage under Martinez’s insurance policy. American Family

denied Martinez’s claim on these grounds.

¶5 Thereafter, Martinez filed suit, seeking a declaratory judgment

on the issue of coverage. Martinez also asserted claims for

contractual and extra-contractual damages. American Family filed

a motion for summary judgment on the issue of coverage, arguing

that the insurance policy’s water damage exclusion for “flood” and

“surface water” applied, as a matter of law, to the damage to

Martinez’s home.

¶6 In a lengthy and thorough written order, the district court

granted American Family’s motion for summary judgment,

concluding that the rain and hail that collected in the window wells

was “surface water” and, thus, the loss from the resulting damage

was excluded by the plain language of the insurance policy.

¶7 This appeal followed.

II. Standard of Review and Applicable Law

¶8 An insurance policy is a contract and, thus, its meaning is a

question of law that we review de novo. Grippin v. State Farm Mut.

2
 Auto. Ins. Co., 2016 COA 127, ¶ 9. In construing an insurance

policy, we apply well-settled principles of contract interpretation,

Cyprus Amax Minerals Co. v. Lexington Ins. Co., 74 P.3d 294, 299

(Colo. 2003), and give effect to the intent and reasonable

expectations of the parties thereto, see Grippin, ¶ 9. In addition, we

read the provisions of the policy as a whole, construing the policy so

that all provisions are harmonious and none is rendered

meaningless. Sachs v. Am. Family Mut. Ins. Co., 251 P.3d 543, 546

(Colo. App. 2010).

¶9 We review an order granting a motion for summary judgment

de novo. Georg v. Metro Fixtures Contractors, Inc., 178 P.3d 1209,

1212 (Colo. 2008). Summary judgment is appropriate only if the

pleadings and supporting documentation demonstrate that no

genuine issue of material fact exists and the moving party is

entitled to judgment as a matter of law. C.R.C.P. 56(c).

¶ 10 In support of its motion for summary judgment, the moving

party carries the initial burden of demonstrating that there is no

genuine issue of material fact. Greenwood Tr. Co. v. Conley, 938

P.2d 1141, 1149 (Colo. 1997). When a party moves for summary

3
 judgment on an issue upon which the party would not bear the

burden of persuasion at trial, the moving party’s initial burden of

production may be satisfied simply by demonstrating an absence of

evidence in the record to support the nonmoving party’s case.

Casey v. Christie Lodge Owners Ass’n, 923 P.2d 365, 366 (Colo.

App. 1996). “[O]nce the moving party has met its initial burden of

production, the burden shifts to the nonmoving party to establish

that there is a triable issue of fact.” Greenwood Tr., 938 P.2d at

1149. If the nonmoving party fails to meet this burden, summary

judgment for the moving party should be granted. Casey, 923 P.2d

at 366.

¶ 11 In reviewing an order granting summary judgment, we give the

nonmoving party the benefit of all favorable inferences that may

reasonably be drawn from the undisputed facts, and all doubts

must be resolved against the moving party. Brodeur v. Am. Home

Assurance Co., 169 P.3d 139, 146 (Colo. 2007).

III. Analysis

¶ 12 On appeal, Martinez raises two contentions. First, he

contends that damage to his basement and personal property was

4
 not caused by “surface water.” Second, he contends that, even if

the water was surface water, it lost that character when it entered

the window wells. Thus, Martinez argues that his policy did not bar

coverage as a matter of law and that, accordingly, the district court

erred in granting American Family’s motion for summary judgment.

¶ 13 We note as a preliminary matter that Martinez’s various

versions of the events at issue changed over time.

¶ 14 Initially, on August 22, 2013, prior to the initiation of this

lawsuit, Martinez told an American Family claims investigator that

about a foot or two of hail . . . fell on the
ground and fell into my window wells.
[O]bviously the hail . . . seeped through the
window . . . as it was melting, [and] that
caused the water to come through the window
and it flooded my basement out.

¶ 15 However, in his complaint, filed on February 6, 2015, Martinez

alleged that his home

incurred accidental direct physical loss as a
result of a severe hail and rainstorm. The hail
was so heavy it filled the window wells not
allowing rainwater to drain. As a result, the
rainwater that went directly into the window
wells could not drain and entered the [home]
through the windows. The rain did not touch
the ground and was above the surface of the

5
 ground at all times before entering into the
[home].

¶ 16 Thus, contrary to his initial claim, Martinez appeared to allege

that the melted hail did not damage his home, but that rain on top

of the hail did so.

¶ 17 Nine months after filing his complaint, in an affidavit filed with

his response to American Family’s motion for summary judgment,

Martinez further elaborated on his more recent account.1 In his

affidavit, Martinez averred as follows:

On August 3, 2013 my home was hit by a
hailstorm and rainstorm. The hail was so
heavy that it filled the window wells, not
allowing rainwater to drain. I also believe the
gutters filled with hail so that rainwater ran off
the roof and directly into the window wells. As
a result, rainwater that fell from the sky and
ran off the roof went directly into the window
wells and could not drain. The rainwater
never touched the ground and was never on
the surface of the ground before entering my
home and causing damage.

1 The district court determined that Martinez’s affidavit was a
sham, designed to create a material issue of fact where none
existed. We need not address this issue because, even assuming
that the damage to Martinez’s home occurred exactly as he alleged
in the district court, we conclude that, as a matter of law, both the
hail and rainwater in the window wells were surface water.
6
¶ 18 On appeal, Martinez reasserts the version of events contained

within his complaint and affidavit. American Family argued below,

and argues now on appeal, that, under any version of events alleged

by Martinez, his insurance policy barred coverage as a matter of

law.2 For the reasons set forth below, we agree with American

Family and conclude that the district court did not err in entering

summary judgment.

A. Relevant Policy Language

¶ 19 As a threshold matter, we must interpret the meaning of the

insurance agreement underlying the parties’ dispute. Cyprus, 74

P.3d at 299. Therefore, to begin, we set forth below the pertinent

policy provisions.

¶ 20 Martinez’s home insurance policy with American Family was

an all-risk policy, which was designed to cover a wide range of

damages to the insured’s home and property unless coverage for a

particular type of loss or damage was expressly excluded under the

2 On appeal, Martinez does not argue that summary judgment was
improper because there were disputed issues of material fact.
Rather, he contends that the district court erred in granting
summary judgment by concluding as a matter of law that the water
that damaged his house and property was “surface water.”
7
 policy. See Novell v. Am. Guar. & Liab. Ins. Co., 15 P.3d 775, 778

(Colo. App. 1999). As pertinent here, the following coverage

provisions were applicable:

We cover risks of accidental direct physical
loss to [the insured’s home], unless the loss is
excluded in this policy. . . .

We [also] cover risks of accidental direct
physical loss to [the insured’s personal
property] when caused by a [covered peril],
unless the loss is excluded in this policy.

¶ 21 As evidenced by the language above, the policy contained

various exclusions. The specific provision relied on by American

Family as grounds for denying Martinez’s claim stated:

We do not ensure 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 to
the loss. . . . 3

3 The language in this emphasized sentence of the exclusion
section of the policy is generally referred to as an anti-concurrent
cause provision. See, e.g., Am. Family Mut. Ins. Co. v. Schmitz, 793
N.W.2d 111, 113 (Wis. Ct. App. 2010) (“We side with American
Family’s position that its anti-concurrent cause provision plainly
excludes coverage if an excluded risk causes the loss regardless of
the contributing causes at issue here.”); see also 2 Randall G. Wick
& Finley Harckham, Successful Partnering Between Inside and
Outside Counsel § 25A:53, Westlaw (database updated Apr. 2016)
(“[A]nticoncurrent clauses may bar coverage even if there is a
8
 9. Water Damage, meaning:

a. flood, surface water, waves, tidal water
or overflow of a body of water, from any
cause. . . .

(Emphasis added.)

¶ 22 Although American Family cited both “flood” and “surface

water” as bases for denying Martinez’s claim, the district court only

applied the “surface water” exclusion in granting American Family’s

motion for summary judgment. Because we determine that the

district court correctly concluded that the damage to Martinez’s

home and property was caused by “surface water,” we need not

address the applicability of the “flood” exclusion.

B. Heller

¶ 23 The seminal Colorado case defining the term “surface water” in

an insurance policy is Heller v. Fire Insurance Exchange, 800 P.2d

1006, 1007 (Colo. 1990). Both parties rely heavily on Heller, as did

the district court in its summary judgment order.

¶ 24 In Heller, the plaintiffs owned a home in Vail, Colorado, and

sustained substantial water damage to their property after runoff

covered cause of loss as long as an excluded clause can also be
found anywhere in the relevant chain of events.”).
9
 from melting snow was diverted onto their land by three parallel

trenches hidden behind their property, which were created by an

unknown person. Id. Each trench was “fifteen to twenty feet long,

three feet wide, [and] six inches deep,” and all three were “lined with

plastic sheets, rocks and tree limbs.” Id.

¶ 25 The plaintiffs filed a claim with their insurer for their loss

under their all-risk home insurance policy. Id. at 1008. The

insurer, however, denied the claim after concluding that the

damage was caused by either “flood” or “surface water,” both of

which were excluded perils under the policy. Id.

¶ 26 The plaintiffs then filed suit, seeking coverage under the

policy. In response, the insurer moved for summary judgment,

arguing that the policy did not cover the damage as a matter of law,

based on the unambiguous surface water exclusion in the policy.

Id. The trial court denied the motion, and the case was tried to a

jury, which returned a verdict in favor of the plaintiffs.4 On appeal,

a division of this court reversed the judgment, see Heller v. Fire Ins.

4 At trial, the insurer renewed its “surface water” exclusion
argument in a motion for directed verdict, which was denied by the
trial court. Heller v. Fire Ins. Exch., 800 P.2d 1006, 1008 (Colo.
1990).
10
 Exch., (Colo. App. No. 87CA1045, Apr. 20, 1989) (not published

pursuant to C.A.R. 35(f)), holding that the water that caused

damage to the plaintiffs’ property was surface water and that the

policy exclusion for surface water was applicable. Heller, 800 P.2d

at 1008. The Colorado Supreme Court granted certiorari.

¶ 27 In its opinion, the supreme court concluded that the term

“surface water” was not ambiguous even though it was not defined

in the policy itself. Id. at 1009. The court then provided the

following definition of surface water:

Surface water is water from melted snow,
falling rain, or rising springs, lying or flowing
naturally on the earth’s surface, not gathering
into or forming any more definite body of water
than a mere bog, swamp, slough, or marsh,
and lost by percolation, evaporation or natural
drainage. Surface water is distinguished from
the water of a natural stream, lake, or pond, is
not of a substantial or permanent existence,
has no banks, and follows no defined course or
channel.

Id. 1008-09 (footnotes omitted).

¶ 28 In applying its definition to the facts of the case, the court

concluded that the water that damaged the plaintiffs’ property was

originally surface water. Id. However, the court held that the

11
 surface water lost that character when it was diverted into the three

man-made trenches. The court reasoned:

Here, the water originated from natural runoff
of melted snow, but was diverted into man-
made trenches that . . . diverted the regular
path of the melted snow over a natural ridge.
These trenches were “defined channels” that
diverted the regular flow of the water,
preventing “percolation, evaporation, or
natural drainage.” In examining the
characteristics of the water that damaged the
[plaintiffs’] property, we conclude that the
runoff lost its character as surface water when
it was diverted by the trenches and therefore
was not within the surface water exclusion
contained in the [plaintiffs’] policy.

¶ 29 Id. 1009. Thus, because the water that damaged the plaintiffs’

property was no longer “surface water,” the court concluded that

the plaintiffs’ loss was covered by their insurance policy. Id.

¶ 30 We must apply the supreme court’s definition of surface water

in Heller. See In re Estate of Ramstetter, 2016 COA 81, ¶ 40.

However, the material facts of this case differ significantly from

those at issue in Heller, and, applying Heller’s definition, we must

determine the following: (1) whether the roof of a building may be

properly understood as “the earth’s surface,” such that it gathers

surface waters; (2) whether “water from melted snow, falling rain, or

12
 rising springs” encompasses water from melted hail; and (3)

whether surface water that enters a window well loses that

character, similar to the effect of the trenches in Heller. See Heller,

800 P.2d at 1008-09.

C. The Damage To Martinez’s Home And Property Was Caused By
Surface Water

¶ 31 Although it is undisputed that water from the thunderstorm

damaged Martinez’s home, Martinez nevertheless contends that the

water was not surface water as defined by Heller. In support of this

contention, Martinez argues that: (1) the precipitation on the roof of

his home was never “lying or flowing naturally on the earth’s

surface,” id., and therefore the water was not “surface water” prior

to flowing directly into the window wells; (2) hail falls outside the

ambit of precipitation contemplated by Heller, id., and, accordingly,

melting hail could not have been surface water; and (3) the

rainwater at the base of the window wells also never “l[ied] or

flow[ed] naturally on the earth’s surface,” because it collected on top

of the hail. Id. at 1008. We disagree with each of these arguments.

¶ 32 We first conclude that the precipitation that fell onto the roof

of Martinez’s home fits well within Heller’s definition of surface

13
 water. Therefore, the precipitation was surface water prior to

entering the window wells. Although Martinez correctly points out

that Heller defines surface water as that “lying or flowing naturally

on the earth’s surface,” id., the term “the earth’s surface” is not as

narrow as Martinez argues.

¶ 33 As a preliminary matter, we note that the “ground” is defined

as “the surface on which man stands, moves, and dwells and on

which objects naturally rest. . . . [T]he earth as contrasted with the

air” or water. Webster’s Third New International Dictionary 1002

(2002). Here, Martinez’s home is a surface upon which objects

naturally rest and is readily contrasted with the air and bodies of

water. Accordingly, we view the rooftop of his home as a mere

continuation of “the earth’s surface,” see Heller, 800 P.2d at 1008.

¶ 34 Moreover, our interpretation of the term “the earth’s surface,”

id., accords with the overwhelming majority of jurisdictions that

have addressed this issue, which view precipitation collecting on a

roof or other man-made structures as “surface water.” See, e.g.,

Bringhurst v. O’Donnell, 124 A. 795, 797 (Del. Ch. 1924) (“[T]he roof

is to be regarded as an artificial elevation of the earth’s surface.

14
 When it intercepts the falling rain or snow, it therefore gathers

surface waters.”); see also Cameron v. USAA Prop. & Cas. Ins. Co.,

733 A.2d 965, 966-67 (D.C. 1999) (relying on Heller and rejecting

an argument that water accumulating on a man-made structure

above the surface of the ground was not surface water); Fenmode,

Inc. v. Aetna Cas. & Sur. Co. of Hartford, 6 N.W.2d 479, 480-81

(Mich. 1942) (concluding that water that pooled and overflowed

from an artificial, paved surface was surface water); Crocker v. Am.

Nat’l Gen. Ins. Co., 211 S.W.3d 928, 936 (Tex. App. 2007) (“[A]n

average reasonable person would not limit surface water to rain

falling only on dirt and not on any paved surfaces or other

structures.”).5

¶ 35 In light of this jurisprudence and our view of the plain

meaning of the term “the earth’s surface,” we conclude that the roof

5 Although one court has distinguished man-made structures above
the surface of the ground from the literal surface of the earth in
analyzing an insurance policy’s surface water exclusion, see
Cochran v. Travelers Ins. Co., 606 So. 2d 22, 23-24 (La. Ct. App.
1992) (concluding that rainwater that accumulated on a roof and
seeped into the building was not surface water because it never
collected or lay on the ground), a thorough review of the
jurisprudence on this point reveals that Cochran’s holding is the
minority view.
15
 of Martinez’s home qualifies as such. Heller, 800 P.2d at 1008.

Thus, with respect to Martinez’s argument that some precipitation

fell onto his roof and then flowed directly into the window wells, we

conclude that such water was surface water.

¶ 36 We next conclude that, to the extent Martinez argues that hail

falls outside the scope of surface water precipitation contemplated

by Heller, and therefore that none of the melting hail on his roof or

in the window wells could have been surface water, he is incorrect.

Heller merely provides a non-exhaustive list of the forms of

precipitation that generate surface water, such as “melted snow,

falling rain, or rising springs.” See id.; see also Black’s Law

Dictionary 1825 (10th ed. 2014) (“Surface water most commonly

derives from rain, springs, or melting snow.”). Nothing in Heller

suggests melted hail is different in this regard, and Martinez does

not point to any court decision suggesting as much.

¶ 37 The dictionary definitions of “precipitation” and “hail” support

our conclusion. Webster’s defines “precipitation” as “a deposit on

the earth of hail, mist, rain, sleet, or snow.” Webster’s Third New

International Dictionary at 1784. Similarly, Webster’s defines “hail”

16
 as “precipitation in the form of small balls or lumps usu[ally]

consisting of concentric layers of clear ice and compact snow

produced by the oscillation of raindrops within cumulonimbus

clouds or by the freezing of raindrops from nimbus clouds.” Id. at

1019. Based on these plain-language definitions of the

precipitation at issue in this case, we see no reason to treat hail as

categorically excepted from the precipitation contemplated by

Heller, 800 P.2d at 1008.

¶ 38 In analogous cases, other jurisdictions have concluded

similarly, albeit in cases not expressly involving hail. For example,

in American Family Mutual Insurance Co. v. Schmitz, 793 N.W.2d

111, 116 (Wis. Ct. App. 2010), the Wisconsin Court of Appeals

addressed a nearly identical argument to that proffered by

Martinez. In Schmitz, the plaintiffs contended that “the water that

contributed to the collapse of [the] home was rain water, not surface

water.” Id. (emphasis added). The court disagreed: “To limit the

definition of surface water to water that does not originate as rain

would leave the term surface water without much meaning.” Id. at

117; see also Ebbing v. State Farm Fire & Cas. Co., 1 S.W.3d 459,

17
 462 (Ark. Ct. App. 1999) (defining “surface water” as “water

accumulating from natural causes”); Crocker, 211 S.W.3d at 931-32

(presuming that surface water is “natural precipitation” coming

onto and passing over the surface of the ground).

¶ 39 Accordingly, we conclude that the melted hail on Martinez’s

roof, as well as the melted hail that allegedly fell directly into

Martinez’s window wells, was surface water. Heller, 800 P.2d at

1008-09.

¶ 40 Finally, because we have concluded that the melting hail in

Martinez’s window wells was surface water, regardless of how it

arrived there, we reject his additional argument that the rainwater

in his window wells, which allegedly accumulated on top of the hail,

never “l[ied] or flow[ed] naturally on the earth’s surface.” Id. at

1008. Instead, we conclude as a matter of law that all of the

precipitation that fell into Martinez’s window wells — rain and hail

— was surface water. There was no artificial distinction or

demarcation between melting hail and rainwater.

18
 D. The Window Wells Did Not Change The Character Of The
Precipitation As Surface Water

¶ 41 Relying on Heller, Martinez next contends that, even if the

water in this case was surface water, it lost its character as surface

water upon entering the window wells. See id. We disagree.

¶ 42 Because Martinez analogizes his window wells to the trenches

at issue in Heller, id. at 1008-09, it is instructive to more fully

articulate the Heller court’s analysis of the trenches at issue in that

case. In Heller, the court ultimately concluded that, because the

trenches changed the nature of the surface water, the damage to

the plaintiffs’ property was no longer excluded from coverage under

the surface water exclusion. Id. at 1009. The court explained:

Here, the water originated from natural runoff
of melted snow, but was diverted into man-
made trenches that were fifteen to twenty feet
long and six inches deep. The trenches
diverted the regular path of the melted snow
over a natural ridge. These trenches were
“defined channels” that diverted the regular
flow of the water, preventing “percolation,
evaporation, or natural drainage.” In
examining the characteristics of the water that
damaged the [plaintiffs’] property, we conclude
that the runoff lost its character as surface
water when it was diverted by the trenches
and therefore was not within the surface water
exclusion contained in the [plaintiffs’] policy.

19
 Id. According to the supreme court, the trenches changed the

character of the water from a diffuse state to a more definite body,

and the trenches were therefore more akin to a watercourse, such

as a “defined channel[]” or “stream, lake, or pond.” Id. For this

reason, the court could not readily characterize the water as surface

water. Id.

¶ 43 Black’s defines a watercourse as

[a] body of water, usu[ally] of natural origin,
flowing in a reasonably definite channel with
bed and banks. The term includes not just
rivers and creeks, but also springs, lakes, and
marshes in which such flowing streams
originate or through which they flow.

Black’s Law Dictionary at 1825-26. By comparison, Webster’s

defines a trench as

[a] narrow steep-sided depression eroded by a
stream : CANYON, GULLY . . . [or,] a long straight
comparatively narrow intermontane depression
often occupied by parts of two or more
drainage systems : TROUGH . . . .

Webster’s Third New International Dictionary at 2438. When placed

side by side, it is evident that watercourses and the Heller trenches

shared nearly all of the same fundamental attributes. Thus, we

20
 conclude that the dispositive characteristics of the Heller trenches

were the following:

 the trenches’ primary purpose of diverting water;

 the trenches’ intentional prevention of “percolation,

evaporation, or natural drainage;” and,

 the trenches’ definiteness as “defined course[s] or

channel[s],” made possible through their “banks.”

Heller, 800 P.2d at 1008-09.

¶ 44 By contrast, Martinez’s window wells are fundamentally

different from the trenches described in Heller, see id. at 1007, and

are even more unlike a watercourse.

¶ 45 First, the trenches in Heller “were fifteen to twenty feet long,

three feet wide, [and] six inches deep.” Id. On the other hand,

photographs of Martinez’s window wells in the record reveal that

they are not long, narrow trenches; rather, the window wells are

wide holes, several feet deep and a few feet wide.

¶ 46 Second, the trenches in Heller were “lined with plastic sheets,

rocks[,] and tree limbs,” id., presumably to prevent drainage and to

better channel the surface water. Conversely, Martinez’s window

21
 wells were, according to his own account, designed to hasten

natural percolation in order to prevent seepage and flooding into the

basement. That is, the window wells were not intentionally

designed to collect water and divert it elsewhere.

¶ 47 Lastly, unlike the trenches in Heller, Martinez’s window wells

did not have banks. Webster’s defines a “bank” as “a mound, pile,

or ridge raised by natural processes or artificial means above the

surrounding level” that “often [has] a broad or long base and [a] flat

top.” Webster’s Third New International Dictionary at 172. On the

other hand, a window well is more appropriately understood as

having below-ground siding designed to retain the surrounding soil.

We accordingly conclude that the factual circumstances of this case

are so distinguishable from Heller that Heller does not compel us to

conclude that the surface water here lost that character upon

entering the window wells.

¶ 48 Indeed, in cases involving window wells, courts in other

jurisdictions have held that a window well did not change the

character of surface water that entered it. For example, in Smith v.

Union Automobile Indemnity Co., 752 N.E.2d 1261, 1263 (Ill. App.

22
 Ct. 2001), a severe rainstorm caused the window wells of the

plaintiffs’ basement to fill with water to such an extent that the

windows broke and the basement flooded with five feet of water. Id.

Water also came into the plaintiffs’ basement through a sewer

drain. Id. The plaintiffs had purchased supplemental coverage for

losses caused by sewer or drain backups, but damage caused by

flood or surface water was expressly excluded from coverage by

their policy. Id. Accordingly, their insurer reimbursed the plaintiffs

for some of the damage but, because it concluded that the majority

of the damage was caused by surface water, refused to cover the full

extent of the plaintiffs’ loss.

¶ 49 Relying on Heller, the plaintiffs argued that the window wells

changed the character of the surface water, since it no longer

“flow[ed] naturally” on “the earth’s surface.” Id. at 1267 (quoting

Heller, 800 P.2d at 1008). The trial court disagreed with the

plaintiffs’ concept of surface water and the role of the window wells,

and it granted the insurer’s motion for summary judgment on the

issue of coverage. Id. at 1266. The Illinois Court of Appeals

affirmed, concluding that “surface water means water derived from

23
natural precipitation that flows over or accumulates on the ground

without forming a definite body of water or following a defined

watercourse.” Id. at 1268. Therefore, because “[t]here was no

evidence that the water emptied into plaintiffs’ basement from a

defined waterway or channel,” the court concluded that the insurer

was entitled to judgment as a matter of law. Id.; see also Park

Ridge Presbyterian Church v. Am. States Ins. Co., No. 11 C 5231,

2014 WL 4637433, *6-7 (N.D. Ill. Sept. 17, 2014) (concluding that a

light well did not change the character of surface water that had

entered the well).6 We are persuaded by the reasoning in Smith and

apply it in this case. Here, as in Smith, the window wells were not a

defined channel or watercourse such that the character of the

surface water was changed upon entering them.

6 We have not found, and Martinez has not cited, any case where a
court has extended Heller’s trench analysis to window wells.
Although a few courts have held that surface water lost that
character, those cases involved facts much more similar to the
trenches in Heller. See, e.g., Georgetowne Square v. U.S. Fid. &
Guar. Co., 523 N.W.2d 380, 380 (Neb. Ct. App. 1994) (holding that,
once channeled through a pipe four feet underground, water lost its
character as surface water); see also Front Row Theatre, Inc. v. Am.
Mfr.’s Mut. Ins. Cos., 18 F.3d 1343, 1347-49 (6th Cir. 1994)
(concluding that surface water that backed up through a drain lost
that character, but surface water that never even entered the drain,
because the blockage prevented it from doing so, did not).
24
¶ 50 Martinez’s reliance on Chateau Village North Condominium

Ass’n v. American Family Mutual Insurance Co., 170 F. Supp. 3d

1349 (D. Colo. 2016), is misplaced because that case is

distinguishable. In Chateau, the plaintiff had an all-risk insurance

policy that excluded coverage for flood and surface water. Id. at

1352. However, the plaintiff had purchased supplementary

coverage for damage caused by sewer and drain backups. Id. at

1352-53. After the sewers near the plaintiff’s property were

inundated by surface water, the sewers overflowed, damaging the

plaintiff’s property. Id. at 1353. In light of the seemingly conflicting

terms in the insurance policy, as well as disputed factual issues

regarding causation, the court denied the insurance company’s

motion for summary judgment. Id. at 1359.

¶ 51 In this case, Martinez did not purchase supplementary

coverage for an express type of peril that contributed to the damage

to his home. Moreover, the sewer system in Chateau, in terms of its

diversion of surface water through a defined channel, is

significantly more analogous to the trenches in Heller than the

window wells in Martinez’s home. Further, there is no dispute here

25
 about causation or competing provisions within the insurance

policy. The anti-concurrent cause provision in Martinez’s policy,

unlike that in Chateau, is definitive.

¶ 52 In sum, we conclude that, under any version of events alleged

by Martinez, the precipitation that accumulated within the window

wells of his home was surface water, and its character was not

changed upon entering the window wells. Because we have

concluded that the insurance policy unambiguously barred

coverage as a matter of law, we agree with the district court’s entry

of summary judgment in favor of American Family.

IV. Conclusion

¶ 53 The judgment is affirmed.

JUDGE DAVIDSON and JUDGE PLANK concur.

26