United States District Court, D. Arizona
REPORT AND RECOMMENDATION
LESLIE A. BOWMAN, District Judge.
Pending before the court is the defendant's motion for summary judgment filed on October 14, 2013, pursuant to Rule 56, FED.R.CIV.P. (Doc. 246)
The plaintiff in this class action, Rosemary Guadiana, claims the defendant breached her homeowner's insurance policy by failing to pay the cost of tearing out and replacing part of the structure when she replaced her polybutylene (PB) plumbing. Guadiana intends to prove at trial that when a section of PB pipe springs a leak, the only way to fix the plumbing system is to replace all the PB pipe. Having done just that, Guadiana claims her insurer must pay the tear-out cost associated with accessing and replacing all that pipe.
The defendant, State Farm Fire and Casualty Company (State Farm), moves that this court grant summary judgment in its favor pursuant to Fed.R.Civ.P. 56. State Farm argues Guadiana cannot show it was necessary to replace her entire PB piping system when one of her pipes sprung a leak. (Doc. 246, p. 13)
The case has been referred to Magistrate Judge Bowman for all pretrial matters pursuant to LRCiv 72.1. Rules of Practice of the U.S. District Court for the District of Arizona. The court finds the motion suitable for decision without oral argument.
The motion should be denied. There remains a genuine issue of material fact as to whether a PB piping system must be completely replaced once it springs a leak.
FACTUAL AND PROCEDURAL BACKGROUND
Guadiana had a homeowner's insurance policy with the defendant, State Farm. (Doc. 247, ¶ 3) On September 9, 2004, her home sustained water damage when the plumbing leaked. Id. at ¶ 1 Shortly afterwards, Guadiana summoned her nephew who installed a repair coupling to plug the leaking pipe. (Doc. 254, ¶ 13)
Guadiana discovered her plumbing system was constructed with polybutylene (PB) pipe. (Doc. 247, ¶ 1) "[S]he was told by two different plumbing experts that the only way to repair a PB system is to replace the PB piping." (Doc. 254, ¶ 14) Accordingly, she replaced all the PB pipes in her home with a different piping material. Id.
Guadiana's homeowner's insurance policy contains the following "tear-out" provision: We do not insure for any loss... which consists of, or is directly and immediately caused by...
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f. continuous or repeated seepage or leakage of water or steam from a:
(1) heating, air conditioning or automatic fire protective ...