In April 2025, a Connecticut, US, decision held that rainwater that flooded a roof which a roof drain could not handle, thus flooding the roof terrace and entering the third floor of a building under the closed terrace door was not “surface water” for the purposes of an exclusion in the policy.
An all-risk commercial property policy covered risks of direct physical loss unless excluded. The exclusion in question precluded coverage for ‘flood, surface water, waves, tides, tidal waves, overflow of any body of water, or their spray, or whether driven by wind or not’. The exclusion for “surface water” was the relevant language. The onus fell on the insurer to prove application of the exclusion. The policy did not define the term “surface water” and the term was, on its own, unclear. The court examined past case law which reflected that multiple courts across US jurisdictions have disagreed about the definition of the term “surface water” or held the term to be ambiguous. The insured submitted that surface water was water on the ground’s surface. The insurer said water need not be on the earth’s surface to be properly labelled “surface water”. Seeing both these interpretations were reasonable, the term was construed in favour of coverage, and it was held that the exclusion did not apply. A rain exclusion in the policy did not apply because the damage was not caused by rain directly entering the office. It was not a situation, for example, where the rain entered the damaged area because somebody left a door or window open.
A South African court would make the same finding on the facts and wording. The ordinary meaning of “surface water” would not be interpreted, especially in an exclusion, by any court to be water on any surface.