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CUEVAS v. ALLSTATE INS. CO.

November 30, 1994

JULIO A. CUEVAS and GUADALUPE C. CUEVAS, et. al., Plaintiffs,
v.
ALLSTATE INSURANCE COMPANY, Defendants.


Rudi M. Brewster, UNITED STATES DISTRICT JUDGE


The opinion of the court was delivered by: RUDI M. BREWSTER

This matter came on regularly for hearing on November 21, 1994 before the Honorable Rudi M. Brewster. Defendant Allstate Insurance Company ("defendant") was represented by Peter H. Klee, Esq. and Charles A. Danaher, Esq., and plaintiffs Julio A. Cuevas, Guadalupe C. Cuevas, Alfredo Robles, Patrocina Robles, Lisa Rocha and Raul M. von Borstel ("plaintiffs") were represented by Craig A. Miller, Esq. After due consideration of the papers filed in support of and in opposition to the parties' cross-motions for summary judgment, all other documents on file in this action, and such oral argument presented at the hearing, this court hereby GRANTS defendant's motion for summary judgment on both causes of action and DENIES plaintiffs' motion for summary judgment.

 During the early 1980s, certain third-parties, including one Norman Roberts, built "berms" on their property for the purpose of diverting/damning the flow of the Tiajuana River. Mr. Matt Marschall -- the lessee of Roberts' property -- was allegedly notified that the dike construction on the property was a violation of the City's municipal code, but failed to abate the condition. On or about January 15, 1993, the berms diverted the flow of the Tiajuana River, causing water and mud damage to plaintiffs' various residences.

 Defendant issued to each of plaintiffs "deluxe" or "deluxe plus" homeowner's insurance policies which were in effect at the time of plaintiffs' losses in 1993. Pursuant to the policies, defendant did not contract to insure:

 
. . loss to the property described in the Dwelling Protection coverage resulting in any manner from:
 
1. Water, meaning:
 
a) flood, surface water, waves, tidal water or overflow of any body of water, or spray from any of these, whether or not driven by wind;
 
b) water which backs up through sewers or drains or overflows 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 the residence premises; or
 
c) water below the surface of the ground. This includes water which exerts pressure on, or flows, seeps or leaks through any part of the residence premises, sidewalk, driveway, or swimming pool.

 Exclusion 1. Furthermore, the homeowners insurance policies unambiguously exclude from coverage:

 
7. one or more of the items listed below, if that item is one of two or more causes of a loss and if the other cause(s) of the loss is (are) excluded by this policy.
 
a) Conduct, act, failure to act, or decision of any person, group, organization or governmental body whether intentional, wrongful, negligent, or without fault.
 
b) Defect, weakness, inadequacy, fault or ...

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