Rule 23 Order filed March 25, 2013
Motion to publish allowed April 24, 2013
In an action seeking a declaratory judgment that the farm insurance policies plaintiff issued to defendants excluded coverage for a neighbor’s claim that the holding pond defendants constructed on their property altered the water flow and level and caused damage to the neighbor’s property, the entry of summary judgment for the insurer was affirmed, since the policy’s exclusion of coverage for damages resulting from the divergence or obstruction of surface water or interference with natural drainage was clear and unambiguous, under Illinois law “drainage” applies to surface and subsurface drainage, and 21 acres of the neighbor’s cropland were flooded after the construction of defendant’s pond.
Appeal from the Circuit Court of Henry County, No. 11-MR-21; the Hon. Charles H. Stengel, Judge, presiding.
Thomas J. Potter, of Ludens Potter & Melton, of Morrison, for appellants Larry Hubbs and Leeann Hubbs.
Bruce L. Carmen, of Carmen Law, of Cambridge, for appellant John Mercer.
John W. Robertson, of Simpson Law Office, of Galesburg, for appellee.
Presiding Justice Wright and Justice Lytton concurred in the judgment and 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's 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 ...