-: SJC 13535.
Zurich-American Insurance Company et al
versus Medical Properties Trust Inc et al.
Okay. Attorney Page.
-: Good morning, your Honors. May I please the court?
I'm Creighton Page on behalf of one
of the appellant's medical properties trust,
which I'll refer to today as MPT.
Your Honors, in the question that's been certified
to this court by the First Circuit,
there is one critically important word
that establishes the analytical framework
for how to answer that question.
And that word is unambiguously.
The certified question asks whether rainwater
that lands and collects on a building roof,
one or more stories above the ground,
unambiguously constitutes surface water
under this court's prior precedent
and for purposes of the insurance policy
that's been issued to MPT.
Now, each of the parties here
thinks that its interpretation of surface waters is correct.
We obviously think we have the better argument.
The certified question should be answered in the negative.
No doubt Zurich thinks it has the better argument too.
But in order for Zurich's interpretation
of surface waters to be adopted,
it's not enough for it just to have a good argument
or even the better argument.
That's not enough to establish that Zurich's interpretation
of surface waters is unambiguously the correct one.
-: But we always have two sides
and everybody's saying mine is clear as day.
That doesn't make it unambiguous
just because there's two interpretations
that the parties are vying for.
-: Of course not, your Honor.
And this court has held that on a number of occasions
that just because there is a dispute
about the meaning of the words as between the parties,
that by itself is not enough to make it ambiguous.
-: Okay, so how does your case differ
from all of those others?
-: Because where there's just a dispute
and one side's dispute,
sorry, one side's competing interpretation
is determined to be not a reasonable one, right?
So the way that this court has described
what it means for policy wording to be unambiguous
is that it is not susceptible
of more than one reasonable interpretation.
Reasonably intelligent persons would not disagree
as to which of the competing interpretations
is the proper one.
There has to be no doubt as to the meaning of the words,
because doubts as to the meaning of the words
are resolved in favor of the policyholder.
-: Do you think your interpretation of surface water
is not the only reasonable one?
-: Our case, your Honor, has always been
that taking the words that this court used
to define surface waters in its prior precedent
and giving them a straightforward application
to the facts of what happened when the rainwater landed
and collected on the roof and infiltrated
the building from above,
our case has always been
that there is a straightforward
and unambiguous way of applying those
in order to rule in our favor.
-: What is the precedent that you're relying on?
-: In defining surface waters?
-: Exactly.
You referenced in your answer to me
that there's this straightforward precedent from the SJC.
What is that?
-: Sure.
There are three cases from this court
that have addressed the meaning of surface waters.
Two of them more recently in the insurance context,
in discussing what that term means
in a proper policy- -: And they are?
-: Boazova, Surabian.
And in each of those two cases,
they took the definition of surface waters from DeSanctis.
And the way the court defines surface waters in those cases
is the same in each instance.
They are waters from rain, melting snow, springs,
a few other natural sources
that lie or flow on the surface of the earth
and naturally spread over the ground,
but do not form part of a natural watercourse or lake.
That's the way the court defined it.
And so the question here is
do those words that this court has used to define
what constitutes surface waters,
does that describe rainwater
that lands on a building roof,
dozens, perhaps hundreds of feet above the ground
and becomes trapped there
and which never lies or flows on the surface of the earth
and never naturally spreads anywhere
other than the roof on which it landed?
And our position is that the answer to that is,
we think, unambiguously, no.
But again, the reason why I started with this
as being the proper analytical framework-
-: Well, the First Circuit obviously didn't,
in it's, what, it's Fidelity case
thought the opposite, right?
-: I wouldn't necessarily agree with that, your Honor.
In the Fidelity v. Nova case,
and I'm sure you will have seen this from the briefing below
and what transpired in our interlocutory appeal
to the First Circuit,
but that case was actually decided
on completely different policy wording.
It was decided on the basis that there was coverage under
that policy for provision that expressly granted coverage
for drain overflow
and that a rain limitation in that policy did not apply.
That's why the policy holder won in that case
and why the policy holder was entitled
to its complete judgment without any deductible.
The question of whether or not the rain on the roof
in that case was surface water
is something that the district court
had characterized it as such, sua sponte.
When it came up on appeal,
that was not contested by the insurer there.
The First Circuit said that in its opinion.
And the actual question that was presented
there on the first circuit in that case was
where the water on the roof has been determined
to be surface water,
because the District Court said so.
Do the unambiguous terms of this policy
provide coverage for that or do they exclude it?
And the District Court's error is that it had overlooked
an endorsement that would provide coverage for that.
But that was very much a secondary part of that case
and not one that impacted the judgment in any way.
The parties did not go back and forth
citing the same arguments we're presenting here,
for example. -: But we also have Judge Saris
in this case who carefully sort of pieces this together
and says that it does deal with the roof.
And her first, at least her original
sort of conceptualization of this
is our precedence do extend to the roof.
-: I think what Judge Saris was really saying in her order,
Judge Saris thought that she was bound by the Nova decision.
She thought that the First Circuit had already addressed
the question that we have here and reached a-
-: So it wasn't quite as simple
to distinguish as you just said then, right?
-: Well, so she thought,
and this is what she said during the oral argument
on the summary judgment hearings in that case,
"I can't just go to the First circuit
and say that they're wrong."
And then she said, "I acknowledge the force
of what you have to say."
This is in the transcript,
"About what the SJC has said in defining surface waters."
So she said, what she ultimately did is ruled against us
in favor of Zurich,
but recognizing how close of a call it was
that it was not clear,
sent it to the First Circuit for interlocutory appeal,
and now the First Circuit has clearly said
that they don't think that Nova
is dispositive of the question,
otherwise they would've gone back
to Judge Saris and said so
instead of certifying the question here.
So I don't think we should treat Nova
as being something that is dispositive of the case.
Certainly not that.
I don't think it's even instructive,
because the question there was so different.
-: Can I ask a more basic question?
'Cause the amicus briefs describes sort of
these catastrophic consequences of both positions.
So rainwater in our roofs.
Okay, so everyone, we have one amicus brief saying
that normally every insurer thinks
their house is covered against a leaky roof.
Is that your sense that's correct, that leaky roofs...
What's the provision in the insurance
that covers leaky roofs if it's not?
I just wanna make sure I understand
the background assumptions well.
-: Sure. Sure, your Honor.
And I guess the question would be,
is there a provision in the policy
that takes away coverage for rainwater intrusion
through a roof?
-: So what's the provision that covers it?
So the normal property insurance is covering my leaky roof
when it's pouring out there.
And these new rainstorms we're getting
like we're Noah's Ark, it's coming down nonstop.
So we're covered,
and you have to exclude it through
this flood insurance provision.
I'm just trying to make sure I understand the assumptions
so we don't accidentally create some problems here.
-: Sure.
The standard homeowners policy,
as well as the standard commercial property policy
includes a few different provisions that are relevant
to this question that you're asking now,
one of which is the so-called water exclusion,
which includes the surface water piece of that exclusion,
which is what was at issue in Boazova and Surabian.
The next one that's critically important
is what we refer to as the rain limitation.
And the rain limitation in the standard policy,
it takes away coverage for damage to the interior
of the building that is caused by rain or snow,
and sometimes some other causes, sleet,
unless the exterior of the property
was first damaged by a covered cause of loss
or unless, I think it was,
it's the circumstance that deals with ice dams,
if it's a function of the melting snow
or ice that comes in.
Now, what the rain limitation doesn't say,
it doesn't say we exclude coverage
for damage caused by rain, period.
Rain is not an excluded cause of loss
to the exterior of the property.
And there are cases, not in Massachusetts,
but in other jurisdictions that's so held.
So if the rain damages the roof of your building,
for example, as there is evidence here that it did,
and then the rain comes in
and damages the interior of your building,
then yes, there is not an exclusion
in the standard policy that takes that away,
unless you were to consider the rain on your roof
to be surface water,
in which case it would come within
the surface water exclusion.
That's why the decision on this certified question reaches
so far beyond just the parties to this case.
Now all of a sudden, if accumulation of water on a roof-
-: I assume he's gonna stand up and say, no, that's not...
You need to have this kind of giant puddle effect for it.
Normal rain that leaks through the roof
is not gonna be what we're dealing with.
It's when it's like this
where you get basically a swimming pool
on top of your house.
-: If my brother stands up and says that,
it will be very different from the position
that Zurich has taken in its briefs,
which is quite clearly that they believe
that as soon as rainwater hits anything,
whether it's the ground or any other surface
for that matter, that it becomes surface water.
That's the position that they've taken.
Now, we disagree with that.
And if rainwater accumulation on a roof,
just to complete your question
about what are the consequences here
for the standard policy,
if that's now surface water,
then so too is snow accumulation on the roof, ice dams.
I don't know, I've dealt with ice dams before
and had to go to my insurer to get coverage for that.
I don't think there's any dispute that damage caused
by ice dams is typically covered.
-: I thought the policy wasn't that surface water
was excluded, but that there was a limit, a cap.
-: I'm sorry, in which case are you referring to?
-: Yours? (laughs)
-: Maybe you can repeat the question.
I think I missed the beginning.
-: So my understanding,
and of course you know more about this than me,
was that there was a cap on the coverage for surface water,
not that it was excluded.
-: You're right, your Honor.
-: So this parade of horribles about ice dams and whatnot
would have to fall within the cap
if we concluded that such things were surface water.
-: Justice Kafker's question was about the consequences
under the standard homeowner's policy,
the standard commercial property policy,
which this is not one of those, right?
-: But I have the same question Justice Wendlandt does,
'cause it is sub limit, right?
That's what this is called.
-: This is about how to construe the sub limit
in the policy for damage caused by flood.
And so what that sub limit does...
Otherwise, there is no question that damage caused by water
or anything else that is not an excluded cause of loss
is covered under this policy,
which has overall limits of $750 million.
The application of the flood sub-limit takes away coverage
for all of the damage that exceeds $100 million,
at least insofar as the flood sub-limit applies to it.
And so that's the question that we're dealing with here.
It is definitely a limiting and exclusionary provision.
Courts have always dealt with sub-limits that way.
Is that?
-: That's right.
But it's not that it's excluded from the policy,
it's just has to fall within
the hundred million dollar limit.
-: In our policy, we're not talking about taking away
all coverage for all of the damage to the hospital.
We're talking about taking away tens
of millions of dollars of coverage
for all of the damage in excess
of a hundred million dollars.
To Justice Kafker's question,
in the standard policy we would be talking
about taking away all coverage for all damage
caused by water accumulation on the roof.
-: Can I, sorry, can I just,
'cause we have not much time limited left.
With one question, in Fidelity,
am I correct that the implication
of reading surface waters to include the rain
meant that coverage existed,
which is the opposite of the situation here?
Is that correct?
-: It's absolutely correct.
It would've been another way of finding coverage.
-: Understood.
So what I'm interested in is the question
of how we deal with ambiguities,
and obviously, ambiguities are generally construed
in favor of the insured
and that is a strong part of your argument here.
Can you tell me what you think the practical differences are
if this court were to rule for you on the grounds
of ambiguity versus the grounds
of its unambiguously in your favor?
Because I'm thinking about other cases
and I'm interested to know,
are there other policies where surface water
is used in a way that would,
if ambiguous, flip the other direction
and would that cause problems
to have surface water mean one thing
in half insurance contracts and one thing in another?
-: Well, it's an excellent question, your Honor.
And I think the best answer to that,
what are the consequences of ruling in our favor,
finding that these words are susceptible
of more than one possible reasonable meaning in the policy
is that it tells the insurers who are writing these policies
using the term surface waters
without having defined them
to mean whatever it is that they wanna argue they mean now,
that they need to be a little bit more careful
in the drafting of their policy language.
It is the insurer's burden
when writing an exclusionary provision in a policy
to state that wording in clear and unmistakable language.
That's what this court has said.
And so if the word surface waters
is being used in the policy without having defined it
to mean something other than what this court
has defined it to mean,
then I would submit that the insurer
has not met its drafting burden in that case,
and that it's not this court's job
to relieve it of that drafting burden
after the fact by construing surface waters so broadly
as to encompass something
that it could have written in the policy
in the first place, but chose not to.
-: But if we say it's unambiguous
and it means what you say,
what are the consequences more broadly beyond your case?
I understand the canon of construction
that we construe things that are ambiguous
against the insurer,
but what if we decided you're right, unambiguously?
You win, but what are the consequences for the industry?
-: Well, it may be the case that insurers would read that
and decide that they want to be more specific
in their-
-: But what would happen to the Novas of the world,
I guess is what I'm wondering?
-: I'm sorry, say it again.
-: What would happen to the Novas of the world,
the Fidelities of the world in that case,
post our decision that is unambiguous
that surface water must run on the earth
and I don't know, dilute unlike a natural waterway?
-: In that case, it would've made no difference at all,
because Nova already had coverage
under the Drain Overflow provision.
It did not need the flood endorsement
and any surface water coverage in order to find coverage.
In fact, if it had been relying
on the surface water coverage
and the flood endorsement of that policy,
its recovery would've been $25,000 less.
-: So there wouldn't be cases where,
I thought Justice Dewar's question was,
are there cases where the only way you're gonna get coverage
is fitting in within this definition of surface water?
And therefore, if we interpret this to be ambiguous,
it's again, it's the opposite effect.
I mean, I guess that's-
-: Well, so the circumstance in which that would be the case-
-: Meaning it's a coverage, rather than,
or maybe it's the same effect
that it's still gonna benefit the person seeking
to claim under it, I guess.
Is that right? Under either context.
-: If you're a policy holder
and your only source of coverage
is under a policy provision
that provides coverage for damage caused by surface water,
rather than taking it away
and you hold the wording of surface water,
if it's not more specifically to find is ambiguous,
policy holder is gonna win in that situation.
It's entitled to the benefit the-
-: So either way, ambiguity is gonna help the policy owner,
both in terms of coverage and avoiding the exclusion.
-: I think that's right, your Honor. Yes.
I see that I'm three minutes overdue.
I don't know if you want me
to address this. -: Go ahead, yeah.
-: Okay.
'Cause the question was posed about what is the circumstance
where you might have a policy holder who needs surface water
to include water on the roof in order to get coverage?
And the only thing I can think of in that situation
would be where a policy holder's only source of coverage
is a flood policy, where flood is defined as,
it might be defined in any number of ways.
If it's a standard flood insurance policy,
it would be the inundation of two or more acres of land
or two or more properties
that is caused by one of the enumerated things
where surface waters is one of them.
In our policy, you see that the flood definition
is the inundation of a normally dry land area
or a structure caused by surface water.
If that was your only source of coverage
for the water damage at issue,
then you would need it to be so,
but that would be highly unusual, your Honors,
for you to have flood coverage,
but not otherwise have water coverage subject
to the standard exclusions.
-: Can you give us a sense of whether the view,
your view of what we say surface water is,
is that in the majority
or the minority view of other jurisdictions?
-: You've seen some back and forth
on this in the briefs, your Honor,
and my view, if you look at the cases that have been cited,
is that more of them come out
in favor of MPT's interpretation
of surface waters than do for Zurich's.
And I would hope that you have appreciated
in looking at the cases that Zurich
and its amici have cited.
About half of them involve the flow of water
over a ground surface into the ground floor
or the basement of the property at issue.
That's what happened in Cameron,
it's what happened in Crocker, it's what happened in Smith,
it's what happened in Capital Mortgage.
And in three of those four that I just mentioned,
the court specifically, well, in two of them,
the court specifically distinguished,
and the other, the insurer itself specifically distinguished
that situation of water flowing over the ground
into the property from water that comes
in through the roof from above.
So in Cameron, the insurer can...
There was water damage that came in
from the roof through, through above.
And the insurer conceded that that was not subject
to the surface water exclusion.
In Crocker and in Smith, the court looked at cases
that have held water intrusion through the roof
is not surface water,
like the Cochran case in Louisiana.
I think that's the one that I think some,
maybe the Georgia and Florida decisions
as well were looked at in those cases.
And it said, what we have here
is something completely distinguishable from that.
Water flowing over the ground, over a patio,
over the driveway into the building on its ground floor
is not at all like rainwater
that comes in from above through the roof.
-: Well, it's the same rainstorm.
Yeah, it's the exact same rainstorm.
That's the problem, isn't it?
And the water that's flowing off the roof
is gonna be at the bottom of the building
coming in to the building the other way.
So it's hard to completely separate the two, right?
-: And I think what your Honor is touching on now
is some of what was driving the Martinez Court
in the Colorado case that Zurich has relied on,
and it stole this phrase that a building roof
is just an extension of the surface of the earth
at that point from the Bringhurst decision in Delaware,
which was entirely different circumstances,
and in Bringhurst the roof had to be considered
an extension of the surface of the earth in that case,
because there was no land on the property from-
-: Right. The whole thing was covered by the roof.
-: Right.
So I think these insurance coverage cases
stealing from Bringhurst in support of this,
to me seems entirely misguided.
But in Martinez, the court could think of it that way
because it wasn't a flat enclosed roof
like what we have here.
It was a roof like you think of on most homes
that slopes down.
And so the rainwater hits the roof
and it flows off onto the ground, as it did in that case.
It landed on the roof and flowed down
to the ground in the window wells.
And so, yeah, you might tend to think
of it a little bit more differently in a case like that.
But again, that's not our case.
-: Okay. Thank you very much.
-: Thank you, your honors.
-: Okay. Attorney Hofer?
-: Madam Chief Justice,
and may it please the court Patrick Hofer
for Appellee Zurich and American Guarantee.
Just blocks from this courthouse,
there are entire neighborhoods
that consist of buildings that are built
right next to each other,
where if you look from above,
the entire block is nothing but roof.
This includes residential row houses
and commercial buildings with low slope roofs
that have a parapet wall.
-: Can I ask you, are we applying
the DeSanctis standard in this case?
-: I'm sorry, your Honor?
-: Are we applying the DeSanctis standard in this case?
-: We start with where the language in DeSanctis comes from,
and that goes back further than DeSanctis.
-: Okay.
Is the term surface water we are applying in this case
is water from rain, et cetera, correct?
-: Exactly. -: Okay.
I get the surface of the earth,
which is you're talking about your row houses
and the roof is an extension of the surface of the earth.
That's metaphysical.
But how do you deal with the naturally spread over
the ground part of that,
dealing with pooled water on a roof
that never hits the ground?
-: So DeSanctis of course, didn't involve a roof.
It involved marshy land in Sargues
and didn't have to consider whether water
on a roof constituted surface waters or not.
It used language which the law had defined
for over a century,
which distinguished natural sources of water-
-: So you want to read out of DeSanctis
in our subsequent cases
that naturally spread over the ground part of the standard?
-: No, you don't need to read it out.
You just need to read it in context.
And so, the context of the law's definition
of surface waters was to distinguish sources of water,
and there were three kinds.
There's water in a channel,
a natural channel like a stream or river,
water in a body like a lake or a pond,
and then everything else that is not contained
and not channeled.
And that was called surface waters.
And the history of this court's decisions over time
consistently agreed that surface waters
includes water on a roof.
There are many cases, we've cited them, where...
I'm sorry.
Where the courts had roofs at issue
and the court said, yes, this water's on the roof,
that's surface water.
Next case, yes, water on the roof.
That's surface water.
In Cochran in 1919,
the court said this is the familiar rule.
So yes, where we're dealing with waters on a roof,
the court's consistent preference has been
that is surface waters for purposes of our legal class.
-: Oh, rainwater?
Oh, rainwater is surface water on the roof?
-: When it accumulates, and-
-: It always accumulates a little bit, right?
I mean, if it's raining hard,
there's always some accumulation.
I'm just trying to make sure the...
Sorry, Justice Gaziano, are you?
-: No, I'm just, I didn't get my question answered,
but go ahead.
-: Oh, well I'm sorry.
I meant to answer your question.
-: I just don't get.
The naturally spread over the ground troubles me
in the application in this case.
And I don't think it's- -: Go ahead. I understand.
-: May I answer Justice Gaziano's question?
The answer to your question is
that part of the statement in DeSanctis
about what surface waters is
was necessary to the holding in that case
because it involved water on the ground.
But if we look back further into the history
of the term in this court's precedent,
it is clear it doesn't have to be on the ground.
-: [Justice Wendlandt] What cases?
-: We start with Field versus Gowdy,
and Cochran in 1919, the case that I just mentioned.
We cited Field v. Gowdy and multiple other cases,
which said this is the familiar rule.
-: But isn't, excuse me, in Field v. Gowdy,
the water was on the ground, right?
The water that caused the damage
that froze and someone got injured.
-: Yeah, it was started on the roof.
And then the court very clearly said that surface water
came from the roof was channeled through downspouts
or gutters and then-
Justice Dewar: Into the ground.
-: Onto the ground. -: Yes.
-: So what about Cochran?
Was that never on the ground, the earth?
-: It started with the water on the roof.
-: Well, I mean sure, sure.
The water, as we all know, comes from the clouds.
-: No, no, but the legal construct
that the court was using about liability
and your obligations and do you-
-: So I guess my question is in Cochran,
was the water on the ground at any point?
-: Eventually, yes.
-: [Justice Wendlandt] Okay, thank you.
-: Yeah, and that's what I'm asking,
because in this case, we have water that pooled
on the deck, the second story deck in the roof,
and never went down, and went into the building.
I guess, eventually it gets to the ground,
but caused the damage before that.
-: Correct.
Well, but the factual issue in all the cases that we cite,
yes, the water did reach the ground,
but that wasn't why the landowner had liability.
It was because if the water
hadn't been redirected artificially
through a downspout or a channel of some sort,
the landowner wouldn't have liability,
because the water on the roof is surface waters
and that falls where it may.
-: Doesn't that derive with what the landowner did
or did not do with the artificial structures
on their property, which directed water?
It doesn't really have to do with the classification
and nature of the water.
This isn't a contract,
and we have to interpret the contract
and it specifies different kinds of,
as you helpfully suggested,
there's different categories of water.
Can you respond to the argument about
our familiar canon of construction
that we should interpret the word surface water
in keeping with the other items in the list
in the flood limitation,
which are tsunami, waves and so forth?
-: Right, so the taxonomy or the classification used
in that definition mirrors
the same classification used by the law.
There are sources of natural water,
natural sources of water.
And that's what the law used.
And that's why surface waters is really a law term.
It's not merely a contract term.
Both parties agree that the law's definition
of surface water is what controls here.
And so, yes, the breakdown identifies various sources,
but not all of them have to be on the ground.
And surface waters, I think probably just surface waters,
all the others of course, natural bodies are on the ground,
surface water, it doesn't have to be on the ground,
and that's what the law has said for over 150 years.
-: Surface water is precipitation then,
under your definition?
-: It is when it accumulates on a surface, yes.
And in Boazova, the court said-
-: So all precipitation, surface water.
-: Essentially what it is, if it's unchanneled,
undirected, uncontained, and accumulation, so yes.
-: So does that pose the problem identified by the amicus
that every time it rains and the roof leaks now,
that fits within the surface water,
rather than it's not covered?
-: No, your Honor, because the amicus
forgets that for flood coverage, which is what we have here,
you have to have more than a leak.
You have to have inundation,
you have to have something- -: But no.
But I'm trying to understand the background assumption.
When it rains hard and the roof leaks,
is that covered or not now, in your world
where surface water includes any precipitation
on the roof?
-: Where we have flood coverage as defined here
and it has a rapid unusual accumulation-
-: So it requires an unusual accumulation?
'Cause again, I'm trying...
We don't wanna do damage
to the entire insurance industry out here.
So we wanna try and understand what you're saying.
Are the amicus wrong that leaking roofs are now,
in your view, surface water?
So we don't recover for those?
Just help us out here because- -: Yeah.
So I'm drawing a distinction between coverage for flood
and exclusion for flood,
and the very typical policy floods is excluded.
-: Right, but rain is not always a flood, right?
-: And rain, there may be coverage for rain damage,
not by flood.
-: But maybe, they're saying that you,
the way you're interpreting surface waters
is going to eliminate that.
Hofer: No, your Honor.
-: Why not?
-: Because the coverage for rain damage, not flood,
so it doesn't have to be accumulation,
rain damage to the interior of the property is covered,
unless that is excluded, excuse me.
Unless that rain entered through damage to the roof.
-: So it's excluded.
So you're saying- -: Typically excluded.
-: So you're saying the amicus are correct that...
Oh no, you're saying that typically,
rain is typically excluded.
-: Typically.
So, if there's wind driven,
if the rain damages the roof in my brother,
Mr. Page's example,
if the rain damages the roof
and the rain enters through that damage, yes.
And then that would provide coverage
for the water damage.
-: What would provide coverage?
-: It's called the rain limitation in the policy.
So rain damage is excluded
unless there's damage to the roof
that allows the rain to enter.
-: Under your theory,
they would no longer get coverage, correct?
Because the water that was on the roof is surface water
and it would therefore be subject to the flood exclusion.
-: No, your Honor.
No, because the...
So this was actually the issue in Fidelity versus Nova.
This is the two competing provisions.
-: If there's debris in the gutter
and it doesn't drain,
then there's some accumulation of the rainwater, right?
Then it becomes surface water and it's no longer covered.
-: So if there's damage in the roof,
it doesn't accumulate.
It goes through the damage.
-: I get what you're saying.
If it's wind driven and the rain penetrates,
which happens in my town constantly,
so rain penetrates, that's covered under your vision.
But what I'm saying is if it's accumulation
and then it penetrates, it becomes surface water.
-: Exactly.
And if there's coverage,
as there was in Fidelity for surface water,
then that coverage applies.
If it's excluded, the surface water is excluded.
-: So it would all turn on a sort of post hoc determination
of how deep the water got on the roof?
-: The way the water entered the building,
I think is the way, and it is, yes.
-: Either directly or via accumulation
or standing water, essentially.
-: Yes.
Well, so here the facts are
the water accumulated to a high degree
on the roof of the building.
MPT's argument is it's a significant flood
really isn't a flood, but of course it is a flood.
So this is an incredible inundation.
And they rely on the surface water argument to say
well, this wasn't surface water.
But we go back to how the court has defined surface waters
for over a hundred years.
It's exactly how the court has treated it.
-: Well, sorry, the 2012 cases though define surface water
in a very specific way that is not what you're saying,
because it specifically refers to flowing over the ground.
And so I'm interested in your observation
that the word you are saying
that you think the word surface waters
is essentially a legal term, like a term of art.
But a lot of your arguments
are relying on dictionary definitions
of the word surface, which are intuitive definitions
that would definitely include the roof,
like it's a surface of the earth.
So can you reconcile those two points?
-: So Boazova and Surabian,
the 2012 cases that you just mentioned
actually sort of drew back a little bit from DeSanctis,
because the court didn't hold in those cases
that the water has to touch natural soil.
It can on an artificial surface.
-: Yeah, but that was just a raised patio.
-: The patio and the parking lot.
-: Right, so the patio was on the same level
as the ledge. -: Correct.
In the house, right?
-: But the challenge in those cases was,
in DeSanctis, the suggestion was it has to be,
has to cover the ground,
has to be on the surface of the earth.
And the court said no,
and this is in context of exclusions.
The court said no, it can be an artificial surface.
Justice Gaziano: That's on the ground.
-: Right, so here of course, the roof,
we have an artificial surface.
It's higher than the ground.
-: That's the issue, right? Is how high up.
-: One of them- -: Is that
how high up is that patio, right?
-: One of the roofs is a courtyard
where people walk and have lunch.
So many ways, it is the ground,
and of course other surfaces are higher.
And that gets into, well, are we dealing with a height test?
Is it a patio, on the ground, surface of the earth,
but a courtyard a little bit higher?
But if you're an ordinary person and you walked into,
I forget, was it the second case, the patio case?
-: Boazova. -: Boazova.
If you walked up to that patio and you said,
"Is that on the ground?",
a normal person would say, "Yeah, it is."
And then if he went up to Norwood Hospital
and said, "Is that thing on the ground?"
Everybody says no.
-: And the courtyard.
So the courtyard, where they say,
if they're having lunch on the courtyard,
is that the ground?
I mean, I think many people say yes.
-: Well if you went in the elevator
and you hit the ground floor,
you're not going on floor two, right?
-: I can see that, your Honor.
Justice Gaziano: Okay. (laughs)
-: You're my insurance broker.
I retire from this court, I wanna buy that building,
and I want insurance, I wanna buy insurance for that,
and I wanna cover these different problems.
It now rains a hell of a lot in Massachusetts.
What do I buy?
How do I protect myself from this happening again?
What kind of insurance do I buy?
-: I think in my policy my client sold, and my client,
we provided flood coverage.
-: So again, I've got three different kinds of damages.
I got a hard rain and it may come into...
You're my broker.
I wanna protect myself from a hard rain
going into the building.
Am I protected by the basic policy?
-: No. -: I'm not. So what do I buy?
-: In a commercial property insurance policy,
like that's sold here, you buy flood coverage.
-: So I have to buy flood coverage
to deal with hard rains on my roof.
But I can't get flood coverage, can I?
-: Yes you can. Absolutely, you can.
The flood, I mean I've been litigating-
-: But again, I bought this building now,
I just bought it from Seward Hospital,
I now have to buy flood insurance
to cover rain pouring through my roof.
-: Yes. -: Okay.
And then I... Okay.
That's your answer. -: Yes, your honor.
I see my time has elapsed.