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Grinnell Mutual Reinsurance Company v. Larry Hubbs

April 24, 2013

GRINNELL MUTUAL REINSURANCE COMPANY, PLAINTIFFS-APPELLEES,
v.
LARRY HUBBS, LEEANN HUBBS, AND JOHN MERCER,
DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of the 14th Judicial Circuit, Henry County, Illinois, Circuit No. 11-MR-21 Honorable Charles H. Stengel, Judge, Presiding.

The opinion of the court was delivered by: Justice Holdridge

JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.

Presiding Justice Wright and Justice Lytton concurred in the judgment and opinion.

OPINION

¶ 1 The plaintiff, Grinnell Mutual Reinsurance Company (Grinnell), brought an action for declaratory judgment in the circuit court of Henry County against defendants, Larry Hubbs and Leeann Hubbs (the insured), and John Mercer. Mercer had brought an action against the insured alleging damage to his cropland allegedly caused by the insured's alteration of the flow and level of surface and groundwater following the insured's construction of a holding pond on the insured property. At all pertinent times, Grinnell had in force certain farm insurance policies issued to the insured. The insured tendered Mercer's claim to Grinnell for defense. By letter dated November 8, 2010, Grinnell denied coverage based upon the following policy exclusion:

"We do not cover property damage resulting from diversion or obstruction of streams or surface water, or from interference with the natural drainage to or from the land of others."

¶ 2 On March 14, 2001, Grinnell filed its complaint for declaratory judgment. Following discovery, Grinnell filed a motion for summary judgment in which it maintained that there was no genuine issue of material fact that the damage to Mercer's cropland was caused by the insured's construction of a weir (dam) to create a holding pond on their property which had the effect of raising the water table on Mercer's property. The court entered summary judgment in favor of Grinnell, finding that the policy language was clear and unambiguous in excluding Mercer's claim from coverage. The insured appealed, contending that: (1) the policy language is ambiguous and, thus, should be construed against Grinnell; (2) the trial court should not have considered any evidence other than the insurance policy; and (3) the court should have required Grinnell to defend the Mercer lawsuit under a reservation of rights. For the following reasons, we affirm the judgment of the circuit court.

¶ 3 BACKGROUND

¶ 4 The following facts are taken from the record. The instant matter arose when the insured dredged a water retention pond and constructed the weir to hold back the water in the pond.*fn1

Mercer alleged in his complaint that the weir was constructed in part by dredging land on the northern border between his property and the insured's property. Mercer alleged that the dredging caused the retention of ground and surface water on the insured's property which, in turn, caused a substantial elevation of the groundwater table on Mercer's property. Mercer further alleged that the increased elevation of the groundwater table resulted in flooding of a 21-acre tract of farmland on the southern edge of his property immediately adjacent to the insured's property.

¶ 5 During discovery, Grinnell deposed Mercer's two experts, Fred W. Lawrence, a hydrologist, and Robert G. Meyers, a surveyor. Lawrence testified that, in his professional opinion, a direct cause and effect relationship existed between the recently constructed weir on the insured's property and the elevated water levels on Mercer's property. Lawrence described the groundwater flow on Mercer's property as "subsurface drainage" and opined that the weir and retention pond constructed on the insured's property impeded the natural subsurface drainage on Mercer's property. Meyers also opined that the weir interfered with the the natural drainage patterns on Mercer's property.

¶ 6 ANALYSIS

¶ 7 Summary judgment is proper if the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2008). The purpose of summary judgment is not to try a question of a fact, but simply to determine whether a genuine issue of triable fact exists. Watkins v. Schmitt, 172 Ill. 2d 193, 203 (1996); Sameer v. Butt, 343 Ill. App. 3d 78, 85 (2003). In determining whether a genuine issue of material fact exists, a court must construe the pleadings, depositions, admissions, and affidavits strictly against the movant and liberally in favor of the opponent. Watkins, 172 Ill. 2d at 203; Sameer, 343 Ill. App. 3d at 85. We review summary judgment rulings de novo. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113 (1995).

ΒΆ 8 Illinois law has long recognized that insurance policies, including exclusionary provisions, will be applied as written unless they violate public policy. Founders Insurance Co. v. Munoz, 237 Ill. 2d 424, 433 (2010). The construction of an insurance policy is a question of law, which is also subject to de ...


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