Damages arising from freezing when a room is left unheated may be covered by an insurance contract

Application by insured for judgment against insurer for breach of contract allowed. The insured’s claim for damage sustained when the pipes in the home burst was not excluded under the policy. Although the loss occurred during the “usual heating season”, the hot-tub room  in which the pipes were located was not an “unheated portion of the dwelling”.

Tapp v. Wawanesa Mutual Insurance Co., [2010] S.J. No. 249, May 4, 2010, Saskatchewan Court of Queen’s Bench, E.J. Gunn J.

The insured owned a home with a sealed fiberglass deck and a 12 seat hot-tub on the second level. The hot tub extended down into an enclosed room located on the first level of the home (the “hot tub room”). In or about the week of March 23, 2009, the insured shut off the hot tub motor and drained the water from the hot tub, as he noticed the tub was leaking. His evidence at trial was that he did not think he disconnected the hot water pipe. On March 29, 2009, the insured discovered that the pipes in the hot tub room had frozen and burst. The insured therefore made a claim to his insurer for the water damage. The claim was denied on the basis of the exclusion for “loss or damage…caused by freezing during the usual heating season…within an unheated portion of your dwelling…”

The insured gave evidence that the hot tub room itself was insulated with fiberglass insulation and Styrofoam. The hot tub water was heated by a heat exchanger and a pump heater, and was kept at 39-40 degrees Celsius at all times. The insured argued that the hot tub room was heated by the water in the hot tub room itself, the heat exchanger, pump heater and hot water pipes. When the hot tub pump and heater exchanger were operating, the air temperature in the hot tub room was about 20 degrees Celsius.

The insurer argued that, once the insured disconnected the power to the hot tub and drained it, the only source of heat in the “hot tub room” would have been eliminated. Therefore, they argued, at the time of the pipes freezing, the hot tub room was an “unheated room”.

The court first rejected the insured’s argument that the incident did not take place during the “usual heating season”. It took judicial notice of the fact that March 29, 2009 in Regina, Saskatchewan, was during the “usual heating season”. Next, the court addressed whether the damage took place in an “unheated portion of the dwelling”. The court that found that, even after the hot tub was drained, the hot water line was still connected. Although there was clearly no, or inadequate, heat at the time the pipes froze, the court found this did not mean the room was an “unheated room”. The court compared it to the situation where a furnace fails. The court stated as follows: “In considering the intention of the parties, it is a reasonable interpretation that if the room in question, i.e. the hot tub room, were ordinarily heated, the fact that it was unheated at the time of the mishap would not be reason for the insurance coverage to be denied.” The court also rejected the insurer’s argument that the hot tub room was in an “unheated portion” of the dwelling because it was not connected to the home’s heating system and had no dedicated heating appliance of its own. The court found that the evidence was that the room was generally heated to 20 degrees Celsius and that there was nothing in the contract to indicate what the source of heat should be for it to be described as being “heated” or conversely “ unheated”.

This case was digested by Natasha D. Morley and edited by David W. Pilley of Harper Grey LLP.

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