United States District Court, D. Arizona
REPORT AND RECOMMENDATION
JAMES A. SOTO, District Judge.
Pending before the court is the plaintiff's motion for judgment filed on August 27, 2014. (Doc. 276)
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 maintains 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.
Guadiana moves for judgment based on her successful motion for partial summary judgment. (Docs. 214, 183, 176)
The case has been referred to Magistrate Judge Bowman for all pretrial matters pursuant to LRCiv 72.1. The court finds the motion suitable for decision without oral argument.
The motion should be denied. Guadiana is not entitled to judgment at this time on her claim for breach of contract.
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...
* * *
f. continuous or repeated seepage or leakage of water or steam from a:
(1) heating, air conditioning or automatic fire protective ...