June 11, 2020


                                                                   Supreme Court

                                                                   No. 2019-166-Appeal.
                                                                   (PC 17-2233)

                 Robin E. Nelson                 :

                        v.                       :

            Allstate Insurance Company.          :




                NOTICE: This opinion is subject to formal revision before
                publication in the Rhode Island Reporter. Readers are requested to
                notify the Opinion Analyst, Supreme Court of Rhode Island, 250
                Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
                3258 of any typographical or other formal errors in order that
                corrections may be made before the opinion is published.
                                                                     Supreme Court

                                                                     No. 2019-166-Appeal.
                                                                     (PC 17-2233)

                Robin E. Nelson                      :

                        v.                           :

          Allstate Insurance Company.                :

              Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                          OPINION

       Chief Justice Suttell, for the Court. The plaintiff, Robin Nelson, is challenging the

dismissal of her breach-of-contract case against her homeowner’s insurance carrier, the defendant,

Allstate Insurance Company, after a hearing justice granted the defendant’s motion for summary

judgment. This case came before the Supreme Court on May 13, 2020, via WebEx video

conference pursuant to an order directing the parties to appear and show cause why the issue raised

in this appeal should not be summarily decided. After considering the parties’ written and oral

submissions and reviewing the record, we conclude that cause has not been shown and that this

case may be decided without further briefing or argument. For the reasons set forth in this opinion,

we affirm the judgment of the Superior Court.

                                                 I

                                         Facts and Travel

       On May 6, 2017, plaintiff’s water heater leaked and flooded the basement of her residence

in Providence. The plaintiff had a homeowner’s insurance policy in place, purchased from

defendant, to cover a variety of types of damage and loss at her residence. The defendant, however,

declined to cover the damage to plaintiff’s residence from the “burst” water heater because,

defendant asserted, this peril was not a covered loss under plaintiff’s policy. The plaintiff filed a

                                                -1-
complaint in Providence County Superior Court claiming that defendant had breached the

insurance contract when it refused to provide coverage to plaintiff under the policy for the expenses

she incurred from the repairs necessitated by the water heater malfunction.

       In October 2018, defendant filed a motion for summary judgment, arguing that plaintiff’s

breach-of-contract claim failed as a matter of law because, under the unambiguous language of the

policy, flooding of the interior of the residence caused by a defective water heater was not a loss

that was covered by the policy. At the hearing held on defendant’s motion in January 2019,

plaintiff argued that the policy covered this damage because, while the policy language did not list

sudden loss due to a malfunctioning water heater and explicitly excluded several types of water

damage, the language did cover direct, sudden losses to the residence. The hearing justice

concluded that the policy language was unambiguous and did not cover the loss claimed by

plaintiff. Accordingly, the hearing justice granted defendant’s motion for summary judgment.

The plaintiff filed a timely notice of appeal.1

                                                  II

                                        Standard of Review

       “This Court will review the grant of a motion for summary judgment de novo, employing

the same standards and rules used by the hearing justice.” JHRW, LLC v. Seaport Studios, Inc.,

212 A.3d 168, 175 (R.I. 2019) (quoting Cancel v. City of Providence, 187 A.3d 347, 349 (R.I.

2018)). “We will affirm a trial court’s decision only if, after reviewing the admissible evidence in

the light most favorable to the nonmoving party, we conclude that no genuine issue of material

fact exists and that the moving party is entitled to judgment as a matter of law.” Id. (quoting



1
 The plaintiff filed her notice of appeal prior to the entry of final judgment; however, we deem a
notice of appeal filed before the entry of final judgment to be timely filed. Giarrusso v. Giarrusso,
204 A.3d 1102, 1106 n.7 (R.I. 2019).
                                                  -2-
Cancel, 187 A.3d at 350). “Furthermore, the nonmoving party bears the burden of proving by

competent evidence the existence of a disputed issue of material fact and cannot rest upon mere

allegations or denials in the pleadings, mere conclusions or mere legal opinions.” Id. (quoting

Cancel, 187 A.3d at 350).

                                                  III

                                              Discussion

        The plaintiff argues that the hearing justice erred when she concluded the policy did not

cover the damage caused by the water heater malfunction. The plaintiff agrees that the language

of her homeowner’s insurance policy is unambiguous, but asserts that the policy clearly covers her

loss because this kind of water damage is not among the types of loss explicitly excluded by the

language of the policy. The plaintiff also asserts that it would be absurd for every conceivable

type of loss to be explicitly listed in an insurance policy and that the “real issue is whether the loss

secondary to water damage as a result of a water heater’s failure[] is excluded.”

        “An insurance policy is contractual in nature.” Medical Malpractice Joint Underwriting

Association of Rhode Island v. Charlesgate Nursing Center, L.P., 115 A.3d 998, 1002 (R.I. 2015)

(brackets omitted) (quoting Derderian v. Essex Insurance Co., 44 A.3d 122, 127 (R.I. 2012)).

“Accordingly, when interpreting the disputed terms of an insurance policy, we must do so in

accordance with the rules of construction that govern contracts.” Id. “It is well-settled that this

Court shall not depart from the literal language of the policy absent a finding that the policy is

ambiguous.” Id. (quoting Nunez v. Merrimack Mutual Fire Insurance Co., 88 A.3d 1146, 1149

(R.I. 2014)).

        “In order to determine whether the terms of a policy are ambiguous, ‘we give words their

plain, ordinary, and usual meaning.’” Charlesgate Nursing Center, 115 A.3d at 1002 (quoting



                                                 -3-
Derderian, 44 A.3d at 128). “The Court considers the policy in its entirety and does not establish

ambiguity by viewing a word in isolation or by taking a phrase out of context.” Id. (quoting

Derderian, 44 A.3d at 128). While “this Court has clearly established that ‘[a] policy [deemed

ambiguous] will be strictly construed in favor of the insured and against the insurer[,]’” id. at 1003

(quoting Derderian, 44 A.3d at 127), the Court “shall refrain from engaging in mental gymnastics

or from stretching the imagination to read ambiguity into a policy where none is present.” Id.

(quoting Koziol v. Peerless Insurance Company, 41 A.3d 647, 651 (R.I. 2012)).

       The parties agree that there are no material facts in dispute and that the only issue to be

resolved in this case is whether, as a matter of law, the policy in question covered plaintiff’s loss.

The plaintiff’s homeowner’s insurance policy states, in pertinent part, the following:

               “Losses We Cover Under Coverages A, B and C:

               “We will cover sudden and accidental direct physical loss to the
               property described in Coverage A – Dwelling Protection, Coverage
               B – Other Structures Protection and Coverage C – Personal Property
               Protection except as limited or excluded in this policy, caused by:

               “1. Fire or Lightning.

               “2. Windstorm or Hail.

                       “* * *

               “3. Explosion.

               “4. Riot or Civil Commotion, including pillage and looting during,
               and at the site of, the riot or civil commotion.

               “5. Aircraft, including self-propelled missiles and spacecraft.

               “6. Vehicles.

               “7. Smoke.

                       “* * *



                                                -4-
              “8. Vandalism and Malicious Mischief.

                     “* * *

              “9. Theft, or attempted theft, including disappearance of property
              from a known place when it is likely that a theft has occurred. Any
              theft must be promptly reported to the police.

                     “* * *

              “10. Breakage of glass which is part of the covered building
              structure. * * * .” (Emphases omitted.)

The policy also includes a list of specific types of losses that are excluded from coverage,

including:

              “Losses We Do Not Cover Under Coverages A, B, and C:

              “We do not cover loss to the property described in Coverage A –
              Dwelling Protection, Coverage B – Other Structures Protection and
              Coverage C – Personal Property Protection caused by or consisting
              of:

              “1. Flood, including, but not limited to surface water, waves, tidal
              water or overflow of any body of water, or spray from any of these,
              whether or not driven by wind.

              “2. Water or any other substance that backs up through sewers or
              drains.

              “3. Water or any other substance that overflow from a sump pump,
              sump pump well or other system designed for the removal of
              subsurface water which is drained from a foundation area of a
              structure.

              “4. Water or any other substance on or below the surface of the
              ground, regardless of its source. This includes water or any other
              substance which exerts pressure on, or flows, seeps or leaks through
              any part of the residence premises.

              “We do cover sudden and accidental direct physical loss caused by
              fire, explosion or theft resulting from items 1 through 4 listed
              above.” (Emphases omitted.)




                                             -5-
These excerpts from the relevant portions of plaintiff’s homeowner’s insurance policy are clear

and can be read together. We agree with the parties and the hearing justice that the policy’s

language is unambiguous. The literal language in the policy indicates that the policy does not

include water damage caused by a malfunctioning appliance in the dwelling as part of the “sudden

and accidental direct physical loss[es]” explicitly listed as covered losses by the policy.2

       The plaintiff distinguishes her case from our holding in DePasquale v. American Casualty

Company of Reading, PA, Inc., 764 A.2d 180 (R.I. 2000) (mem.), in which we affirmed the entry

of summary judgment in favor of the defendant insurance company because the underground water

pipes that ruptured, resulting in extensive damage to the plaintiff’s property, were expressly

excluded by the unambiguous language of that policy and therefore did not qualify as property

covered by the policy. DePasquale, 764 A.2d at 181-82. Here, as in DePasquale, we “will not

depart from the literal language of the contract[.]” Id. at 181; see Nunez, 88 A.3d at 1149 (affirming

entry of summary judgment in favor of insurance company when policy explicitly excluded loss

caused by corrosion). Even without a specific exclusion, the damage caused by the plaintiff’s

malfunctioning water heater is clearly not one of the hazards articulated in the policy language

quoted above. See 10A Steven Plitt et al., Couch on Insurance 3d § 148:48 (June 2020 update) (“A

loss which does not properly fall within the coverage clause cannot be regarded as covered thereby

merely because it is not within any of several specific exceptions[.]”). Accordingly, we affirm the

entry of summary judgment in favor of the defendant on the plaintiff’s claim for breach of the

insurance contract.




2
 We suspect that plaintiff takes little solace from the fact that she was covered for damage caused
by “self-propelled missiles and spacecraft,” yet not from a leaky water heater. This case
underscores the importance of carefully reading an insurance policy.
                                                -6-
                                                 IV

                                            Conclusion

       For the reasons set forth herein, the judgment of the Superior Court is affirmed. The record

of this case shall be returned to the Superior Court.




                                                -7-
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        Robin E. Nelson v. Allstate Insurance Company.
                                     No. 2019-166-Appeal.
Case Number
                                     (PC 17-2233)
Date Opinion Filed                   June 11, 2020
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Chief Justice Paul A. Suttell

Source of Appeal                     Providence County Superior Court

Judicial Officer From Lower Court    Associate Justice Melissa A. Long
                                     For the Plaintiff:

                                     Bernard P. Healy, Esq.
Attorney(s) on Appeal                For the Defendant:

                                     Peter A. Clarkin, Esq.
                                     Jeffrey D. Pethick, Esq.




SU-CMS-02A (revised June 2016)
