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Overcoming That Sinking Feeling: Beating Earth Movement Exclusions in CGL Policies

The recent rainstorms in California rightly have been hailed as the end of a lengthy drought.  The inches of rain which fell in the span of a week have filled reservoirs and raised the water table in the parched ground.  Such a large volume of water, however, increases the danger of landslides in California’s notoriously unconsolidated hillsides and bluffs, and with it, the possibility of disputes over whether particular ground movement claims are covered by their liability policies.

Let’s look at a hypothetical example.  XYZ Construction is laying pipes under an existing street at the top of a bluff.  In the course of digging trenches to hold the pipes, one of XYZ’s diggers accidentally breaks the water main line.  Water spurts out of the main line, quickly fills the trench, and spills across the ground toward the top of the bluff.  Several hours later, the saturated bluff, already weakened by rain, collapses onto a building below, causing severe damage to the structure.  The owner of the damaged structure files a lawsuit against XYZ.

XYZ, like virtually all construction contractors, has purchased commercial general liability (CGL) insurance.  CGL policies insure the policyholder’s liability for bodily injury or property damage, and provide it with a defense against claims asserting such liability.  XYZ’s insurer refuses to defend it against the third-party claim, noting that the policy has an earth movement exclusion.  Under that exclusion, there is no coverage for liability arising out of “the subsidence of land or earth movement, including landslide, earthquake, mudflow, earth sinking, earth rising or earth shifting.”  The insurance company notes that, because the claim against XYZ clearly arises out of earth movement, there is no possibility of coverage.  Is the insurance company correct?

Many CGL policies have earth movement exclusions.  The placement of such exclusions in CGL policies is a frequent source of friction between insurance companies and policyholders, because if applicable they can defeat coverage of a substantial source of bet-the-company-size liability.  Not surprisingly, the scope of earth movement exclusions has been heavily litigated.

Earth movement exclusions can vary widely between insurance companies.  As it turns out, these differences can make or break the insurance company’s coverage defense.  Where an earth movement exclusion contains express language making it applicable without regard to cause, courts have applied them broadly to defeat coverage.  However, where the exclusion does not have such language, courts have been less willing to apply them to earth movement attributable to human causes, as CGL policies by their nature insure against accidents.  This is especially the case where the exclusion lists examples of earth movement that are best characterized as natural, such as landslides, mudflows, earthquakes, and so on.  In such circumstances, many – though not all – courts read the exclusion to be ambiguous, and under the rules of insurance policy construction, resolve interpretation of the exclusion in favor of coverage.

© 2020 BARNES & THORNBURG LLPNational Law Review, Volume VII, Number 65


About this Author

John Corbett Litigation & Insurance Attorney
Of Counsel

Litigator and insurance recovery counsellor and advocate John Corbett focuses on meeting the insurance recovery needs of corporate policyholders in a wide variety of industries, including construction, transportation, telecommunications, and healthcare management. He fights for policyholders to ensure they get the full benefit of the coverage they purchased.

John represents policyholders both in the Dallas-Fort Worth region and across the country. He understands the strategies insurance companies use to avoid paying out benefits and how to get them to pay.

He offers years of...

Andrew Detherage Insurance & Commercial Attorney

Andrew J. Detherage is a partner in the Indianapolis and Los Angeles offices of Barnes & Thornburg. Andrew serves on the firm's Management Committee. He is admitted to practice in Indiana and California. He also is co-chair of the firm's Insurance Recovery and Counseling Practice Group.

Andrew represents clients in litigated matters throughout the United States and has appeared in courts in more than 35 states. His practice concentrates on insurance coverage matters for policyholders, complex commercial disputes, and toxic torts defense. He currently serves as national counsel for clients in sophisticated insurance coverage litigation, commercial litigation, and toxic tort matters.

In 2015, Andrew represented a global leader in retail real estate ownership, management and development and secured a $204 million jury verdict after a six-week trial relating to flood losses. The verdict included both covered losses and consequential damages in excess of the coverage limits.

Andrew has written papers and spoken at seminars on insurance coverage, expert witnesses, and trial preparation. Since 2007, he has been included in The Best Lawyers in America in the fields of bet-the-company litigation, commercial litigation, construction litigation, personal injury litigation and product liability litigation. In 2017, Andrew was recognized as a "Lawyer of the Year" by The Best Lawyers in America for his work in insurance law. He is also included on the Indiana Super Lawyers list and ranked among the top litigation attorneys since 2011 in Chambers USA. In 2011, Andrew was named a Fellow of the Litigation Counsel of America. In 2015, he was recognized as a Law360 MVP for his work in insurance litigation.

Andrew is a native of Indiana. He received his B.A. in economics and criminal justice with highest distinction from Indiana University-Bloomington, and his J.D., summa cum laude, from Indiana University Robert H. McKinney School of Law, where he was an associate editor of the Indiana Law Review.

Andrew served as president of the board of directors of Big Brothers of Greater Indianapolis (2000-2001) and continues to serve as a member of the board of directors of Big Brothers Big Sisters of Central Indiana. He also serves as a member of the board and secretary of the Indianapolis Tennis Championships, Inc. Andrew was also named a fellow for the Litigation Counsel of America in 2011. He is a past president and arts fair chairman of the Penrod Society, a local arts organization.