In Fidelity Co-Operative Bank v. Nova Cas. Co., 726 F.3d 31 (1st Cir. 2013), the United States Court of Appeals for the First Circuit reportedly turned a rooftop drain into a sewer drain (by virtue of an amendatory endorsement that may have simply failed to reiterate sewer backup as an exclusion; or did it expressly state that it was replacing the entire clause containing the sewer-backup exclusion?) and turned “surface” from the land at the property/structure(s) into also including the structure(s) (the roof only and not as a runoff source to the land upon which the structure(s) sit).
Are rooftop drains extensions of the storm-sewer system, per se? Was the drain connected directly to the sewer system? If not, isn’t deeming a rooftop drain a sewer drain more than a stretch?
The court also took the words “the unusual or rapid accumulation or runoff of surface waters from any source” and ignored the term “runoff.” Rain falling directly onto a roof is not “runoff” from any source unless clouds dropping rain is runoff, which is clearly not the case or language is rendered useless here. Did the court deem the roof itself the source of “runoff” into the upper floors of the building? Apparently so.
The insurers (insurance companies, carriers) will have to rewrite their definitions to clear this up going forward.