United States District Court, N.D. Indiana, Fort Wayne Division
For Sarah Beke, Individually and on behalf of Her Minor Children on behalf of AB, on behalf of NB, on behalf of MB, on behalf of NB, on behalf of EB, on behalf of BB, on behalf of JPB, on behalf of JB, David Beke, Individually and on behalf of His Minor Children on behalf of AB, on behalf of NB, on behalf of MB, on behalf of NB, on behalf of EB, on behalf of BB, on behalf of JPB, on behalf of JB, Plaintiffs: Thomas M Dixon, LEAD ATTORNEY, Dixon Wright & Associates PC, Osceola, IN.
For Amica General Agency Inc, doing business as, Amica Mutual Insurance Company, Defendant: Elizabeth Hunter Steele, LEAD ATTORNEY, Tyra Law Firm PC, Indianapolis, IN; Kevin C Tyra, LEAD ATTORNEY, The Tyra Law Firm PC, Indianapolis, IN.
OPINION AND ORDER
William C. Lee, United States District Judge.
After their home was invaded by raw sewage materials and left uninhabitable, plaintiffs, Sarah and David Beke (hereafter, the Bekes") filed a state court complaint for damages against their insurance company, Amica General Agency Inc., DBA Amica Mutual Insurance Company (hereafter, " Amica") [DE 2], asserting that Amica breached its insurance contract with them. Arnica removed the case to federal court, [DE 1], and filed the present Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6) [DE 7] asserting they paid the proceeds required under the insurance policy at issue and owe no further coverage under the contract of insurance. For the following reasons, Amica's Motion to Dismiss will be DENIED.
On February 28, 2012, workers from the City of Valparaiso were clearing a clog in a sewer line near the Bekes' home through the use of high pressure equipment. According to the allegations of the Complaint, the use of high pressure equipment during this process caused sewage to back up into the Bekes' home from the toilets, sinks, and drains exposing the family to the contaminants and causing substantial damage to both the home as well as the Bekes' personal property. ( Complaint ¶ 7-12). In addition to physical damage to the home and to their personal property, the Bekes' were unable to re-inhabit the home due to the extensive contamination from the raw sewage that had flowed into their residence and were forced to find alternate, temporary lodging. ( Complaint ¶ 11).
At the time of the sewer backup, the Plaintiffs' home was insured by Amica under a contract of insurance effective April 12, 2011 to April 12, 2012 (hereinafter, " the Policy"). Section I, Coverage C, subsection 12 of the Policy provided for coverage of $10, 000 for Water Back-up and Sump Discharge or Overflow. Specifically, those provisions read:
SECTION I - PERILS INSURED AGAINST
Coverage C - Personal Property
We insure for direct physical loss to the property described in Coverage C caused by any of the following perils unless the loss is excluded in Section I - Exclusions.
12. Accidental Discharge or Overflow of Water or Steam
a. This peril means accidental discharge or overflow of water or steam from within a plumbing, heating, air conditioning or automatic fire protective sprinkler system or from within a household appliance.
b. This peril does not ...