COLORADO COURT OF APPEALS                                         2017COA15


Court of Appeals No. 16CA0456
Weld County District Court No. 15CV30103
Honorable Todd L. Taylor, Judge


Michael Martinez,

Plaintiff-Appellant,

v.

American Family Mutual Insurance Company, a Wisconsin Corporation,

Defendant-Appellee.


                            JUDGMENT AFFIRMED

                                  Division A
                       Opinion by CHIEF JUDGE LOEB
                       Davidson* and Plank*, JJ., concur

                         Announced February 9, 2017


Meier & Giovanini, LLC, Douglas Meier, Lakewood, Colorado, for Plaintiff-
Appellant

Campbell, Latiolais & Averbach, LLC, Kirsten M. Dvorchak, Colin C. Campbell,
Denver, Colorado, for Defendant-Appellee


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶1    In this insurance coverage case, plaintiff, Michael Martinez,

 appeals the district court’s entry of summary judgment, pursuant

 to C.R.C.P. 56(c), in favor of defendant, American Family Mutual

 Insurance Company (American Family). We affirm.

              I.    Background and Procedural History

¶2    At all times relevant to this appeal, Martinez owned a home in

 Erie, Colorado. The home had a finished basement with windows

 below the ground, which were surrounded by window wells.

¶3    On August 3, 2013, there was a severe thunderstorm in Erie.

 According to Martinez’s complaint, some of the heavy hail and rain

 collected at the base of his window wells, and the hail at the base of

 the window wells prevented the accumulating rainwater from

 percolating into the ground. As alleged by Martinez, the rainwater

 accumulated on top of the hail to such an extent that it eventually

 overflowed the basement windows, seeped into the basement, and

 caused substantial damage to his home and personal property.

¶4    Martinez filed a claim with his insurer, American Family. After

 conducting an investigation, American Family concluded that the

 damage to Martinez’s home was caused by either “flooding” or


                                   1
 “surface water,” and was, therefore, expressly excluded from

 coverage under Martinez’s insurance policy. American Family

 denied Martinez’s claim on these grounds.

¶5    Thereafter, Martinez filed suit, seeking a declaratory judgment

 on the issue of coverage. Martinez also asserted claims for

 contractual and extra-contractual damages. American Family filed

 a motion for summary judgment on the issue of coverage, arguing

 that the insurance policy’s water damage exclusion for “flood” and

 “surface water” applied, as a matter of law, to the damage to

 Martinez’s home.

¶6    In a lengthy and thorough written order, the district court

 granted American Family’s motion for summary judgment,

 concluding that the rain and hail that collected in the window wells

 was “surface water” and, thus, the loss from the resulting damage

 was excluded by the plain language of the insurance policy.

¶7    This appeal followed.

            II.     Standard of Review and Applicable Law

¶8    An insurance policy is a contract and, thus, its meaning is a

 question of law that we review de novo. Grippin v. State Farm Mut.


                                   2
  Auto. Ins. Co., 2016 COA 127, ¶ 9. In construing an insurance

  policy, we apply well-settled principles of contract interpretation,

  Cyprus Amax Minerals Co. v. Lexington Ins. Co., 74 P.3d 294, 299

  (Colo. 2003), and give effect to the intent and reasonable

  expectations of the parties thereto, see Grippin, ¶ 9. In addition, we

  read the provisions of the policy as a whole, construing the policy so

  that all provisions are harmonious and none is rendered

  meaningless. Sachs v. Am. Family Mut. Ins. Co., 251 P.3d 543, 546

  (Colo. App. 2010).

¶9     We review an order granting a motion for summary judgment

  de novo. Georg v. Metro Fixtures Contractors, Inc., 178 P.3d 1209,

  1212 (Colo. 2008). Summary judgment is appropriate only if the

  pleadings and supporting documentation demonstrate that no

  genuine issue of material fact exists and the moving party is

  entitled to judgment as a matter of law. C.R.C.P. 56(c).

¶ 10   In support of its motion for summary judgment, the moving

  party carries the initial burden of demonstrating that there is no

  genuine issue of material fact. Greenwood Tr. Co. v. Conley, 938

  P.2d 1141, 1149 (Colo. 1997). When a party moves for summary


                                     3
  judgment on an issue upon which the party would not bear the

  burden of persuasion at trial, the moving party’s initial burden of

  production may be satisfied simply by demonstrating an absence of

  evidence in the record to support the nonmoving party’s case.

  Casey v. Christie Lodge Owners Ass’n, 923 P.2d 365, 366 (Colo.

  App. 1996). “[O]nce the moving party has met its initial burden of

  production, the burden shifts to the nonmoving party to establish

  that there is a triable issue of fact.” Greenwood Tr., 938 P.2d at

  1149. If the nonmoving party fails to meet this burden, summary

  judgment for the moving party should be granted. Casey, 923 P.2d

  at 366.

¶ 11   In reviewing an order granting summary judgment, we give the

  nonmoving party the benefit of all favorable inferences that may

  reasonably be drawn from the undisputed facts, and all doubts

  must be resolved against the moving party. Brodeur v. Am. Home

  Assurance Co., 169 P.3d 139, 146 (Colo. 2007).

                              III.   Analysis

¶ 12   On appeal, Martinez raises two contentions. First, he

  contends that damage to his basement and personal property was


                                     4
  not caused by “surface water.” Second, he contends that, even if

  the water was surface water, it lost that character when it entered

  the window wells. Thus, Martinez argues that his policy did not bar

  coverage as a matter of law and that, accordingly, the district court

  erred in granting American Family’s motion for summary judgment.

¶ 13   We note as a preliminary matter that Martinez’s various

  versions of the events at issue changed over time.

¶ 14   Initially, on August 22, 2013, prior to the initiation of this

  lawsuit, Martinez told an American Family claims investigator that

            about a foot or two of hail . . . fell on the
            ground and fell into my window wells.
            [O]bviously the hail . . . seeped through the
            window . . . as it was melting, [and] that
            caused the water to come through the window
            and it flooded my basement out.

¶ 15   However, in his complaint, filed on February 6, 2015, Martinez

  alleged that his home

            incurred accidental direct physical loss as a
            result of a severe hail and rainstorm. The hail
            was so heavy it filled the window wells not
            allowing rainwater to drain. As a result, the
            rainwater that went directly into the window
            wells could not drain and entered the [home]
            through the windows. The rain did not touch
            the ground and was above the surface of the


                                     5
             ground at all times before entering into the
             [home].

¶ 16   Thus, contrary to his initial claim, Martinez appeared to allege

  that the melted hail did not damage his home, but that rain on top

  of the hail did so.

¶ 17   Nine months after filing his complaint, in an affidavit filed with

  his response to American Family’s motion for summary judgment,

  Martinez further elaborated on his more recent account.1 In his

  affidavit, Martinez averred as follows:

             On August 3, 2013 my home was hit by a
             hailstorm and rainstorm. The hail was so
             heavy that it filled the window wells, not
             allowing rainwater to drain. I also believe the
             gutters filled with hail so that rainwater ran off
             the roof and directly into the window wells. As
             a result, rainwater that fell from the sky and
             ran off the roof went directly into the window
             wells and could not drain. The rainwater
             never touched the ground and was never on
             the surface of the ground before entering my
             home and causing damage.




  1 The district court determined that Martinez’s affidavit was a
  sham, designed to create a material issue of fact where none
  existed. We need not address this issue because, even assuming
  that the damage to Martinez’s home occurred exactly as he alleged
  in the district court, we conclude that, as a matter of law, both the
  hail and rainwater in the window wells were surface water.
                                     6
¶ 18   On appeal, Martinez reasserts the version of events contained

  within his complaint and affidavit. American Family argued below,

  and argues now on appeal, that, under any version of events alleged

  by Martinez, his insurance policy barred coverage as a matter of

  law.2 For the reasons set forth below, we agree with American

  Family and conclude that the district court did not err in entering

  summary judgment.

                       A. Relevant Policy Language

¶ 19   As a threshold matter, we must interpret the meaning of the

  insurance agreement underlying the parties’ dispute. Cyprus, 74

  P.3d at 299. Therefore, to begin, we set forth below the pertinent

  policy provisions.

¶ 20   Martinez’s home insurance policy with American Family was

  an all-risk policy, which was designed to cover a wide range of

  damages to the insured’s home and property unless coverage for a

  particular type of loss or damage was expressly excluded under the



  2 On appeal, Martinez does not argue that summary judgment was
  improper because there were disputed issues of material fact.
  Rather, he contends that the district court erred in granting
  summary judgment by concluding as a matter of law that the water
  that damaged his house and property was “surface water.”
                                    7
  policy. See Novell v. Am. Guar. & Liab. Ins. Co., 15 P.3d 775, 778

  (Colo. App. 1999). As pertinent here, the following coverage

  provisions were applicable:

            We cover risks of accidental direct physical
            loss to [the insured’s home], unless the loss is
            excluded in this policy. . . .

            We [also] cover risks of accidental direct
            physical loss to [the insured’s personal
            property] when caused by a [covered peril],
            unless the loss is excluded in this policy.

¶ 21   As evidenced by the language above, the policy contained

  various exclusions. The specific provision relied on by American

  Family as grounds for denying Martinez’s claim stated:

            We do not ensure for loss caused directly or
            indirectly by any of the following. Such loss is
            excluded regardless of any other cause or event
            contributing concurrently or in any sequence to
            the loss. . . . 3



  3  The language in this emphasized sentence of the exclusion
  section of the policy is generally referred to as an anti-concurrent
  cause provision. See, e.g., Am. Family Mut. Ins. Co. v. Schmitz, 793
  N.W.2d 111, 113 (Wis. Ct. App. 2010) (“We side with American
  Family’s position that its anti-concurrent cause provision plainly
  excludes coverage if an excluded risk causes the loss regardless of
  the contributing causes at issue here.”); see also 2 Randall G. Wick
  & Finley Harckham, Successful Partnering Between Inside and
  Outside Counsel § 25A:53, Westlaw (database updated Apr. 2016)
  (“[A]nticoncurrent clauses may bar coverage even if there is a
                                    8
             9. Water Damage, meaning:

                  a. flood, surface water, waves, tidal water
                  or overflow of a body of water, from any
                  cause. . . .

  (Emphasis added.)

¶ 22   Although American Family cited both “flood” and “surface

  water” as bases for denying Martinez’s claim, the district court only

  applied the “surface water” exclusion in granting American Family’s

  motion for summary judgment. Because we determine that the

  district court correctly concluded that the damage to Martinez’s

  home and property was caused by “surface water,” we need not

  address the applicability of the “flood” exclusion.

                                 B. Heller

¶ 23   The seminal Colorado case defining the term “surface water” in

  an insurance policy is Heller v. Fire Insurance Exchange, 800 P.2d

  1006, 1007 (Colo. 1990). Both parties rely heavily on Heller, as did

  the district court in its summary judgment order.

¶ 24   In Heller, the plaintiffs owned a home in Vail, Colorado, and

  sustained substantial water damage to their property after runoff


  covered cause of loss as long as an excluded clause can also be
  found anywhere in the relevant chain of events.”).
                                     9
  from melting snow was diverted onto their land by three parallel

  trenches hidden behind their property, which were created by an

  unknown person. Id. Each trench was “fifteen to twenty feet long,

  three feet wide, [and] six inches deep,” and all three were “lined with

  plastic sheets, rocks and tree limbs.” Id.

¶ 25   The plaintiffs filed a claim with their insurer for their loss

  under their all-risk home insurance policy. Id. at 1008. The

  insurer, however, denied the claim after concluding that the

  damage was caused by either “flood” or “surface water,” both of

  which were excluded perils under the policy. Id.

¶ 26   The plaintiffs then filed suit, seeking coverage under the

  policy. In response, the insurer moved for summary judgment,

  arguing that the policy did not cover the damage as a matter of law,

  based on the unambiguous surface water exclusion in the policy.

  Id. The trial court denied the motion, and the case was tried to a

  jury, which returned a verdict in favor of the plaintiffs.4 On appeal,

  a division of this court reversed the judgment, see Heller v. Fire Ins.

  4  At trial, the insurer renewed its “surface water” exclusion
  argument in a motion for directed verdict, which was denied by the
  trial court. Heller v. Fire Ins. Exch., 800 P.2d 1006, 1008 (Colo.
  1990).
                                     10
  Exch., (Colo. App. No. 87CA1045, Apr. 20, 1989) (not published

  pursuant to C.A.R. 35(f)), holding that the water that caused

  damage to the plaintiffs’ property was surface water and that the

  policy exclusion for surface water was applicable. Heller, 800 P.2d

  at 1008. The Colorado Supreme Court granted certiorari.

¶ 27   In its opinion, the supreme court concluded that the term

  “surface water” was not ambiguous even though it was not defined

  in the policy itself. Id. at 1009. The court then provided the

  following definition of surface water:

             Surface water is water from melted snow,
             falling rain, or rising springs, lying or flowing
             naturally on the earth’s surface, not gathering
             into or forming any more definite body of water
             than a mere bog, swamp, slough, or marsh,
             and lost by percolation, evaporation or natural
             drainage. Surface water is distinguished from
             the water of a natural stream, lake, or pond, is
             not of a substantial or permanent existence,
             has no banks, and follows no defined course or
             channel.

  Id. 1008-09 (footnotes omitted).

¶ 28   In applying its definition to the facts of the case, the court

  concluded that the water that damaged the plaintiffs’ property was

  originally surface water. Id. However, the court held that the


                                     11
  surface water lost that character when it was diverted into the three

  man-made trenches. The court reasoned:

             Here, the water originated from natural runoff
             of melted snow, but was diverted into man-
             made trenches that . . . diverted the regular
             path of the melted snow over a natural ridge.
             These trenches were “defined channels” that
             diverted the regular flow of the water,
             preventing “percolation, evaporation, or
             natural drainage.” In examining the
             characteristics of the water that damaged the
             [plaintiffs’] property, we conclude that the
             runoff lost its character as surface water when
             it was diverted by the trenches and therefore
             was not within the surface water exclusion
             contained in the [plaintiffs’] policy.

¶ 29   Id. 1009. Thus, because the water that damaged the plaintiffs’

  property was no longer “surface water,” the court concluded that

  the plaintiffs’ loss was covered by their insurance policy. Id.

¶ 30   We must apply the supreme court’s definition of surface water

  in Heller. See In re Estate of Ramstetter, 2016 COA 81, ¶ 40.

  However, the material facts of this case differ significantly from

  those at issue in Heller, and, applying Heller’s definition, we must

  determine the following: (1) whether the roof of a building may be

  properly understood as “the earth’s surface,” such that it gathers

  surface waters; (2) whether “water from melted snow, falling rain, or

                                    12
  rising springs” encompasses water from melted hail; and (3)

  whether surface water that enters a window well loses that

  character, similar to the effect of the trenches in Heller. See Heller,

  800 P.2d at 1008-09.

   C. The Damage To Martinez’s Home And Property Was Caused By
                           Surface Water

¶ 31   Although it is undisputed that water from the thunderstorm

  damaged Martinez’s home, Martinez nevertheless contends that the

  water was not surface water as defined by Heller. In support of this

  contention, Martinez argues that: (1) the precipitation on the roof of

  his home was never “lying or flowing naturally on the earth’s

  surface,” id., and therefore the water was not “surface water” prior

  to flowing directly into the window wells; (2) hail falls outside the

  ambit of precipitation contemplated by Heller, id., and, accordingly,

  melting hail could not have been surface water; and (3) the

  rainwater at the base of the window wells also never “l[ied] or

  flow[ed] naturally on the earth’s surface,” because it collected on top

  of the hail. Id. at 1008. We disagree with each of these arguments.

¶ 32   We first conclude that the precipitation that fell onto the roof

  of Martinez’s home fits well within Heller’s definition of surface

                                     13
  water. Therefore, the precipitation was surface water prior to

  entering the window wells. Although Martinez correctly points out

  that Heller defines surface water as that “lying or flowing naturally

  on the earth’s surface,” id., the term “the earth’s surface” is not as

  narrow as Martinez argues.

¶ 33   As a preliminary matter, we note that the “ground” is defined

  as “the surface on which man stands, moves, and dwells and on

  which objects naturally rest. . . . [T]he earth as contrasted with the

  air” or water. Webster’s Third New International Dictionary 1002

  (2002). Here, Martinez’s home is a surface upon which objects

  naturally rest and is readily contrasted with the air and bodies of

  water. Accordingly, we view the rooftop of his home as a mere

  continuation of “the earth’s surface,” see Heller, 800 P.2d at 1008.

¶ 34   Moreover, our interpretation of the term “the earth’s surface,”

  id., accords with the overwhelming majority of jurisdictions that

  have addressed this issue, which view precipitation collecting on a

  roof or other man-made structures as “surface water.” See, e.g.,

  Bringhurst v. O’Donnell, 124 A. 795, 797 (Del. Ch. 1924) (“[T]he roof

  is to be regarded as an artificial elevation of the earth’s surface.


                                     14
  When it intercepts the falling rain or snow, it therefore gathers

  surface waters.”); see also Cameron v. USAA Prop. & Cas. Ins. Co.,

  733 A.2d 965, 966-67 (D.C. 1999) (relying on Heller and rejecting

  an argument that water accumulating on a man-made structure

  above the surface of the ground was not surface water); Fenmode,

  Inc. v. Aetna Cas. & Sur. Co. of Hartford, 6 N.W.2d 479, 480-81

  (Mich. 1942) (concluding that water that pooled and overflowed

  from an artificial, paved surface was surface water); Crocker v. Am.

  Nat’l Gen. Ins. Co., 211 S.W.3d 928, 936 (Tex. App. 2007) (“[A]n

  average reasonable person would not limit surface water to rain

  falling only on dirt and not on any paved surfaces or other

  structures.”).5

¶ 35   In light of this jurisprudence and our view of the plain

  meaning of the term “the earth’s surface,” we conclude that the roof



  5 Although one court has distinguished man-made structures above
  the surface of the ground from the literal surface of the earth in
  analyzing an insurance policy’s surface water exclusion, see
  Cochran v. Travelers Ins. Co., 606 So. 2d 22, 23-24 (La. Ct. App.
  1992) (concluding that rainwater that accumulated on a roof and
  seeped into the building was not surface water because it never
  collected or lay on the ground), a thorough review of the
  jurisprudence on this point reveals that Cochran’s holding is the
  minority view.
                                    15
  of Martinez’s home qualifies as such. Heller, 800 P.2d at 1008.

  Thus, with respect to Martinez’s argument that some precipitation

  fell onto his roof and then flowed directly into the window wells, we

  conclude that such water was surface water.

¶ 36   We next conclude that, to the extent Martinez argues that hail

  falls outside the scope of surface water precipitation contemplated

  by Heller, and therefore that none of the melting hail on his roof or

  in the window wells could have been surface water, he is incorrect.

  Heller merely provides a non-exhaustive list of the forms of

  precipitation that generate surface water, such as “melted snow,

  falling rain, or rising springs.” See id.; see also Black’s Law

  Dictionary 1825 (10th ed. 2014) (“Surface water most commonly

  derives from rain, springs, or melting snow.”). Nothing in Heller

  suggests melted hail is different in this regard, and Martinez does

  not point to any court decision suggesting as much.

¶ 37   The dictionary definitions of “precipitation” and “hail” support

  our conclusion. Webster’s defines “precipitation” as “a deposit on

  the earth of hail, mist, rain, sleet, or snow.” Webster’s Third New

  International Dictionary at 1784. Similarly, Webster’s defines “hail”


                                    16
  as “precipitation in the form of small balls or lumps usu[ally]

  consisting of concentric layers of clear ice and compact snow

  produced by the oscillation of raindrops within cumulonimbus

  clouds or by the freezing of raindrops from nimbus clouds.” Id. at

  1019. Based on these plain-language definitions of the

  precipitation at issue in this case, we see no reason to treat hail as

  categorically excepted from the precipitation contemplated by

  Heller, 800 P.2d at 1008.

¶ 38   In analogous cases, other jurisdictions have concluded

  similarly, albeit in cases not expressly involving hail. For example,

  in American Family Mutual Insurance Co. v. Schmitz, 793 N.W.2d

  111, 116 (Wis. Ct. App. 2010), the Wisconsin Court of Appeals

  addressed a nearly identical argument to that proffered by

  Martinez. In Schmitz, the plaintiffs contended that “the water that

  contributed to the collapse of [the] home was rain water, not surface

  water.” Id. (emphasis added). The court disagreed: “To limit the

  definition of surface water to water that does not originate as rain

  would leave the term surface water without much meaning.” Id. at

  117; see also Ebbing v. State Farm Fire & Cas. Co., 1 S.W.3d 459,


                                    17
  462 (Ark. Ct. App. 1999) (defining “surface water” as “water

  accumulating from natural causes”); Crocker, 211 S.W.3d at 931-32

  (presuming that surface water is “natural precipitation” coming

  onto and passing over the surface of the ground).

¶ 39   Accordingly, we conclude that the melted hail on Martinez’s

  roof, as well as the melted hail that allegedly fell directly into

  Martinez’s window wells, was surface water. Heller, 800 P.2d at

  1008-09.

¶ 40   Finally, because we have concluded that the melting hail in

  Martinez’s window wells was surface water, regardless of how it

  arrived there, we reject his additional argument that the rainwater

  in his window wells, which allegedly accumulated on top of the hail,

  never “l[ied] or flow[ed] naturally on the earth’s surface.” Id. at

  1008. Instead, we conclude as a matter of law that all of the

  precipitation that fell into Martinez’s window wells — rain and hail

  — was surface water. There was no artificial distinction or

  demarcation between melting hail and rainwater.




                                     18
       D. The Window Wells Did Not Change The Character Of The
                     Precipitation As Surface Water

¶ 41    Relying on Heller, Martinez next contends that, even if the

  water in this case was surface water, it lost its character as surface

  water upon entering the window wells. See id. We disagree.

¶ 42    Because Martinez analogizes his window wells to the trenches

  at issue in Heller, id. at 1008-09, it is instructive to more fully

  articulate the Heller court’s analysis of the trenches at issue in that

  case. In Heller, the court ultimately concluded that, because the

  trenches changed the nature of the surface water, the damage to

  the plaintiffs’ property was no longer excluded from coverage under

  the surface water exclusion. Id. at 1009. The court explained:

             Here, the water originated from natural runoff
             of melted snow, but was diverted into man-
             made trenches that were fifteen to twenty feet
             long and six inches deep. The trenches
             diverted the regular path of the melted snow
             over a natural ridge. These trenches were
             “defined channels” that diverted the regular
             flow of the water, preventing “percolation,
             evaporation, or natural drainage.” In
             examining the characteristics of the water that
             damaged the [plaintiffs’] property, we conclude
             that the runoff lost its character as surface
             water when it was diverted by the trenches
             and therefore was not within the surface water
             exclusion contained in the [plaintiffs’] policy.

                                     19
  Id. According to the supreme court, the trenches changed the

  character of the water from a diffuse state to a more definite body,

  and the trenches were therefore more akin to a watercourse, such

  as a “defined channel[]” or “stream, lake, or pond.” Id. For this

  reason, the court could not readily characterize the water as surface

  water. Id.

¶ 43   Black’s defines a watercourse as

               [a] body of water, usu[ally] of natural origin,
               flowing in a reasonably definite channel with
               bed and banks. The term includes not just
               rivers and creeks, but also springs, lakes, and
               marshes in which such flowing streams
               originate or through which they flow.

  Black’s Law Dictionary at 1825-26. By comparison, Webster’s

  defines a trench as

               [a] narrow steep-sided depression eroded by a
               stream : CANYON, GULLY . . . [or,] a long straight
               comparatively narrow intermontane depression
               often occupied by parts of two or more
               drainage systems : TROUGH . . . .

  Webster’s Third New International Dictionary at 2438. When placed

  side by side, it is evident that watercourses and the Heller trenches

  shared nearly all of the same fundamental attributes. Thus, we



                                      20
  conclude that the dispositive characteristics of the Heller trenches

  were the following:

           the trenches’ primary purpose of diverting water;

           the trenches’ intentional prevention of “percolation,

            evaporation, or natural drainage;” and,

           the trenches’ definiteness as “defined course[s] or

            channel[s],” made possible through their “banks.”

  Heller, 800 P.2d at 1008-09.

¶ 44   By contrast, Martinez’s window wells are fundamentally

  different from the trenches described in Heller, see id. at 1007, and

  are even more unlike a watercourse.

¶ 45   First, the trenches in Heller “were fifteen to twenty feet long,

  three feet wide, [and] six inches deep.” Id. On the other hand,

  photographs of Martinez’s window wells in the record reveal that

  they are not long, narrow trenches; rather, the window wells are

  wide holes, several feet deep and a few feet wide.

¶ 46   Second, the trenches in Heller were “lined with plastic sheets,

  rocks[,] and tree limbs,” id., presumably to prevent drainage and to

  better channel the surface water. Conversely, Martinez’s window

                                    21
  wells were, according to his own account, designed to hasten

  natural percolation in order to prevent seepage and flooding into the

  basement. That is, the window wells were not intentionally

  designed to collect water and divert it elsewhere.

¶ 47   Lastly, unlike the trenches in Heller, Martinez’s window wells

  did not have banks. Webster’s defines a “bank” as “a mound, pile,

  or ridge raised by natural processes or artificial means above the

  surrounding level” that “often [has] a broad or long base and [a] flat

  top.” Webster’s Third New International Dictionary at 172. On the

  other hand, a window well is more appropriately understood as

  having below-ground siding designed to retain the surrounding soil.

  We accordingly conclude that the factual circumstances of this case

  are so distinguishable from Heller that Heller does not compel us to

  conclude that the surface water here lost that character upon

  entering the window wells.

¶ 48   Indeed, in cases involving window wells, courts in other

  jurisdictions have held that a window well did not change the

  character of surface water that entered it. For example, in Smith v.

  Union Automobile Indemnity Co., 752 N.E.2d 1261, 1263 (Ill. App.


                                    22
  Ct. 2001), a severe rainstorm caused the window wells of the

  plaintiffs’ basement to fill with water to such an extent that the

  windows broke and the basement flooded with five feet of water. Id.

  Water also came into the plaintiffs’ basement through a sewer

  drain. Id. The plaintiffs had purchased supplemental coverage for

  losses caused by sewer or drain backups, but damage caused by

  flood or surface water was expressly excluded from coverage by

  their policy. Id. Accordingly, their insurer reimbursed the plaintiffs

  for some of the damage but, because it concluded that the majority

  of the damage was caused by surface water, refused to cover the full

  extent of the plaintiffs’ loss.

¶ 49   Relying on Heller, the plaintiffs argued that the window wells

  changed the character of the surface water, since it no longer

  “flow[ed] naturally” on “the earth’s surface.” Id. at 1267 (quoting

  Heller, 800 P.2d at 1008). The trial court disagreed with the

  plaintiffs’ concept of surface water and the role of the window wells,

  and it granted the insurer’s motion for summary judgment on the

  issue of coverage. Id. at 1266. The Illinois Court of Appeals

  affirmed, concluding that “surface water means water derived from


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natural precipitation that flows over or accumulates on the ground

without forming a definite body of water or following a defined

watercourse.” Id. at 1268. Therefore, because “[t]here was no

evidence that the water emptied into plaintiffs’ basement from a

defined waterway or channel,” the court concluded that the insurer

was entitled to judgment as a matter of law. Id.; see also Park

Ridge Presbyterian Church v. Am. States Ins. Co., No. 11 C 5231,

2014 WL 4637433, *6-7 (N.D. Ill. Sept. 17, 2014) (concluding that a

light well did not change the character of surface water that had

entered the well).6 We are persuaded by the reasoning in Smith and

apply it in this case. Here, as in Smith, the window wells were not a

defined channel or watercourse such that the character of the

surface water was changed upon entering them.

6 We have not found, and Martinez has not cited, any case where a
court has extended Heller’s trench analysis to window wells.
Although a few courts have held that surface water lost that
character, those cases involved facts much more similar to the
trenches in Heller. See, e.g., Georgetowne Square v. U.S. Fid. &
Guar. Co., 523 N.W.2d 380, 380 (Neb. Ct. App. 1994) (holding that,
once channeled through a pipe four feet underground, water lost its
character as surface water); see also Front Row Theatre, Inc. v. Am.
Mfr.’s Mut. Ins. Cos., 18 F.3d 1343, 1347-49 (6th Cir. 1994)
(concluding that surface water that backed up through a drain lost
that character, but surface water that never even entered the drain,
because the blockage prevented it from doing so, did not).
                                 24
¶ 50   Martinez’s reliance on Chateau Village North Condominium

  Ass’n v. American Family Mutual Insurance Co., 170 F. Supp. 3d

  1349 (D. Colo. 2016), is misplaced because that case is

  distinguishable. In Chateau, the plaintiff had an all-risk insurance

  policy that excluded coverage for flood and surface water. Id. at

  1352. However, the plaintiff had purchased supplementary

  coverage for damage caused by sewer and drain backups. Id. at

  1352-53. After the sewers near the plaintiff’s property were

  inundated by surface water, the sewers overflowed, damaging the

  plaintiff’s property. Id. at 1353. In light of the seemingly conflicting

  terms in the insurance policy, as well as disputed factual issues

  regarding causation, the court denied the insurance company’s

  motion for summary judgment. Id. at 1359.

¶ 51   In this case, Martinez did not purchase supplementary

  coverage for an express type of peril that contributed to the damage

  to his home. Moreover, the sewer system in Chateau, in terms of its

  diversion of surface water through a defined channel, is

  significantly more analogous to the trenches in Heller than the

  window wells in Martinez’s home. Further, there is no dispute here


                                    25
  about causation or competing provisions within the insurance

  policy. The anti-concurrent cause provision in Martinez’s policy,

  unlike that in Chateau, is definitive.

¶ 52   In sum, we conclude that, under any version of events alleged

  by Martinez, the precipitation that accumulated within the window

  wells of his home was surface water, and its character was not

  changed upon entering the window wells. Because we have

  concluded that the insurance policy unambiguously barred

  coverage as a matter of law, we agree with the district court’s entry

  of summary judgment in favor of American Family.

                             IV.   Conclusion

¶ 53   The judgment is affirmed.

       JUDGE DAVIDSON and JUDGE PLANK concur.




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