October 2026, by Aaron Jacob, Esq.
Every winter, pipes freeze and burst, causing some of the most expensive water damage claims that a property owner can face. A single ruptured pipe can flood multiple floors of a house within hours, and because pipes often burst while a property is empty, the damage may go undiscovered for days or weeks. This often happens in seasonal homes, or where an insured purchases a property in the winter but has not yet moved in.
Most homeowners and property policies cover water damage caused by frozen pipes. However, nearly all property policies contain a “freezing” exclusion that removes that coverage, usually while the property is vacant or unoccupied, unless the insured used “reasonable care” to maintain heat in the building, or to shut off the water supply and drain the system. After a freeze-related loss, insurers routinely invoke this exclusion, pointing to gas or electric bills, the thermostat setting, how often anyone checked on the property, or a utility shut-off notice, and argue that the insured did not do enough.
New York courts have enforced the exclusion where an owner took essentially no steps to keep a property heated. But they have also found coverage, or at least sent the question to a jury, where the owner took real, reasonable steps that turned out to be unsuccessful. The difference between those outcomes usually comes down to what the owner actually did before the pipes froze.
An analysis of how New York courts apply the “reasonable care to maintain heat” requirement is below, including what courts treat as reasonable care, how utility shutoffs are treated, the stricter “do your best” and minimum-temperature provisions found in some policies, and what to do before winter so that a frozen pipe claim is not denied on this basis.
What Is the Freezing Exclusion?
A typical homeowners or commercial property policy contains the following, or a similar, exclusion for damage caused by:
a. freezing of a plumbing, heating air conditioning or automatic fire protective sprinkler system or of a household appliance, or by discharge, leakage or overflow from within the system or appliance caused by freezing. This exclusion applies only while the dwelling is vacant, unoccupied or being constructed unless you have used reasonable care to:
(1) maintain heat in the building; or
(2) shut off the water supply and drain the system and appliances of water.1
The exact wording of the exclusion can vary from policy to policy, and some policies include the requirement to maintain heat as a policy “condition” rather than, or in addition to, the exception to the freeze exclusion.2 Regardless, an insurer looking to deny coverage for damage caused by a frozen pipe under this type of provision generally asks the following questions: (1) whether the loss was actually caused by freezing; (2) if the policy so limits the exclusion, whether the property was “vacant” or “unoccupied” at the time; and (3) whether the insured used reasonable care to maintain heat, or to shut off the water and drain the system.
Generally, under New York law, an insurer bears the burden of establishing that an exclusion to coverage applies, while an insured bears the burden of establishing that an exception to an exclusion applies.3 However, when applying the freeze exclusion and the exception to the freeze exclusion (reasonable care to maintain heat), New York appellate courts have placed the entire burden on the insurer and required the insurer to show that the insured failed to use reasonable care.4 At least one court, however, has placed the burden on the insured where the heat requirement was treated as a true exception.5 Either way, the practical lesson is the same: an insured who can document the steps taken to keep the property heated is in a far stronger position.
Notably, policies often limit the freeze exclusion to a “vacant” or “unoccupied” property, and so the exclusion would not apply at all to a home that was occupied (whether by the insureds or by other people). Courts have explained that “[i]t is the regular presence of inhabitants that makes occupancy,”6 and that a person’s presence in a house “for sleeping and eating and working purposes can literally constitute occupancy.”7 While the broader question of whether a home is occupied under different circumstances is outside the scope of this article, a seasonal home left empty for the winter will generally be considered “unoccupied.”8
I. What Counts as “Reasonable Care” to Maintain Heat?
“Reasonable care” is generally measured by what an ordinarily prudent person would do under the same or similar circumstances.9 The Fourth Department has gone further, holding that the phrase is ambiguous and must therefore be construed in favor of the insured, while the Third Department has disagreed.10 Either way, the standard is objective, and the question is whether the insured’s actions were reasonable under the circumstances, not whether the insured personally believed that he or she did enough.11 This determination is generally fact-specific.
Importantly, the requirement is to use reasonable care, not to guarantee that the pipes will never freeze. As such, the reasonable care standard can be satisfied in any number of situations in which a property owner took substantial steps to maintain heat but nonetheless failed to prevent frozen pipes through no fault of their own.12
Moreover, the exclusion does not apply in every case where a loss is caused by a lack of heat.13 As the Fourth Department explained, there is no “per se rule that a policyholder’s failure to conduct regular interior inspections at specific intervals, irrespective of any other efforts, constitutes a failure to use ‘reasonable care’ to maintain heat.”14 Similarly, where an insurer argued that the owner should have reviewed the gas bills, visited during the specific cold snap, and had a cold-weather protocol in place, the court explained that if the insurer wished to require those measures, “the policy form could have done so.”15
The Spectrum: From “No Steps” to “Reasonable, Albeit Unsuccessful, Efforts”
The cases fall along a spectrum. At one end are owners who took essentially no steps to keep a property heated, and courts have denied coverage as a matter of law. In one First Department case, the owner never purchased heating oil or contracted with an oil supplier in the 18 months it owned the building, and never told its caretaker that the building was heated with oil, how to check the oil level, or where the tank was.16 Similarly, the Third Department denied coverage where a home was left unoccupied from December to March with no arrangement for anyone to check the interior, and the gas consumption was too low to have prevented freezing.17
At the other end are owners who took real, documented steps to maintain heat, and courts have rewarded those efforts by finding coverage as a matter of law. For example, in McAleavey, the owner of a seasonal home kept the heat at about 50 degrees, had a newly installed and regularly maintained heating system, and visited roughly fifteen times over the winter to check the temperature, windows, and fixtures, until he was hospitalized with a broken leg, after which neighbors and a realtor checked the outside of the house.18 The Fourth Department distinguished those “reasonable—albeit unsuccessful—efforts” from cases of neglect and granted the insured summary judgment.19 As another example, in Gallo, the insured also won as a matter of law where the property manager restored electricity to a vacant rental and confirmed the furnace was operating two days before the freeze.20
Most cases fall somewhere in between, and in those cases courts generally find that whether the insured used reasonable care is a question of fact for a jury.21
The Factors Courts Look At
In practice, the factors that courts22 (and insurers) most often focus on include:
• the thermostat setting, with settings of about 50 to 55 degrees commonly at issue;
• whether there was a reliable fuel supply, such as an automatic oil delivery arrangement;
• whether the heating system was serviced and in good working order;
• how often someone checked the inside of the property, and whether that person actually checked the heat;
• whether any caretaker, property manager, or realtor was clearly instructed on what to check and how;
• the gas or electric usage during the cold period; and
• how the owner responded to warning signs, such as falling temperatures, a heating problem, or a utility shut-off notice.
Insurers frequently rely on utility records to argue that the heat was off. For example, insurers have retained engineers to compare gas consumption against outdoor temperatures and conclude that too little fuel was used to keep the property above freezing.23 Those records are not always the end of the analysis. In Gallo, utility records showing “no record of electric service” did not raise an issue of fact where witnesses confirmed that the electricity was on and the furnace was running shortly before the freeze.24
Insureds should also be aware that the conduct of a property manager or other agent may be charged to the owner. In ADAR, the property manager’s log showed declining temperatures, including 41 degrees days before the loss, with no response, and the court held that the manager’s failures were attributable to the owner.25 An arrangement with a realtor or friend to check on a property can also become a point of dispute where it was informal and unconfirmed.26
Utility Shutoffs
Utility shutoffs are a recurring source of frozen pipe denials, particularly for rental properties between tenants. Courts have denied coverage as a matter of law where an owner ignored repeated “final turn-off” notices,27 and where a landlord learned that the power had been cut in the middle of winter but declined to return to the property so the utility could restore service. In the latter case, the court held that the owner “knew or should have known that he should return to the Property without delay,” and described his failure to act as “the equivalent of ignoring the obvious and burying one’s head in the sand.”28
By contrast, an owner who promptly asks the utility to restore service and reasonably relies on its assurances may raise a question of fact. In Billitier, the owner discovered that the power had been shut off after his tenants left, immediately called the utility, and was told that power would be restored within days. The utility’s attempt to restore power failed, and it never told him. The court held that whether the owner used reasonable care, including whether he should have drained the pipes or provided another source of heat in the meantime, was a question for the jury.29
Examples of how New York courts have applied these principles include:
(1) No coverage, where the owner never purchased heating oil or contracted with an oil supplier, and never instructed its caretaker on how to maintain the heat.30
(2) No coverage, where the home was unoccupied from December to March with no arrangement for anyone to check the interior, and gas usage was too low to prevent freezing.31
(3) No coverage, where the owner ignored repeated final shut-off notices and the utility cut off gas and electric service.32
(4) No coverage, where the landlord learned the power had been cut in mid-winter and declined to return to the property to allow the utility to restore service.33
(5) Question of fact, where an automatic fuel oil delivery arrangement may have remained in effect.34
(6) Question of fact, where the thermostat was left at 55 degrees and the insured and her mother visited periodically.35
(7) Question of fact, where the owner promptly asked the utility to restore power and relied on its assurances, but the utility’s attempt failed and it never told him.36
(8) Question of fact, where the owner was abroad for five weeks with the thermostats at about 55 degrees, and the parties disputed whether a realtor had agreed to check on the house.37
(9) Question of fact, where the owner and a property manager regularly inspected the building, but gas bills showed no heat in one unit for three months.38
(10) Coverage, where the property manager restored power to the building and the furnace was confirmed operating two days before the freeze.39
(11) Coverage, where the owner kept the heat at about 50 degrees, maintained the heating system, and checked the home roughly fifteen times over the winter before being hospitalized.40
Key takeaway: Reasonable care is about what you did, not whether the pipes froze. Keep the heat at a sensible level, keep the fuel supply and heating system in working order, have someone actually check the inside of the property and the thermostat on a regular schedule, give that person clear instructions, and respond immediately to any warning sign, especially a utility shut-off notice. Then document all of it.
II. When the Policy Requires More: “Do Your Best” or Minimum-Temperature Provisions
Not every policy uses the “reasonable care” standard. Some commercial and other policies require the insured to “do your best to maintain heat in the building or structure.” The First Department has held that phrase unambiguous, and denied coverage where the owner took essentially no steps to maintain heat.41 At least one court has noted that “best efforts” may impose a higher standard than reasonable care, although it left that question open.42
Other policies go further, and contain an endorsement requiring that heat be maintained at a specific minimum temperature. Courts have generally enforced these provisions as written. For example, the First Department denied coverage under a “Heat Condition” endorsement requiring heat “at a minimum of 55 degrees Fahrenheit,” where the building’s rooftop heating units were turned off and the insurer’s experts showed, based on electrical consumption, that the baseboard heaters alone could not have maintained 55 degrees.43 Similarly, a federal court enforced an endorsement requiring an ambient temperature of at least 50 degrees “at all times” as an absolute condition, holding that the owner’s reasonable efforts did not matter once the temperature fell below that level.44
Key takeaway: Read the entire policy, including every endorsement, before winter. If your policy contains a minimum-temperature requirement, the question is no longer whether you were reasonable, but whether the building stayed above the stated temperature, which may call for a temperature monitoring device or a different coverage arrangement.
III. Was the Loss Actually Caused by Freezing?
Finally, the exclusion applies only if the loss was caused by freezing, and that is not always clear. For example, in Farrell, the insured’s experts opined that the burst pipe ran along an interior wall, that no pipes along exterior walls had frozen, and that an unrelated leak had flooded the basement and shut down the boiler, so that the lack of heat was the result of the water damage, not its cause.45 Similarly, the timing of a heating system failure (before or after the pipes burst) can be a key factual dispute.46
The exact wording of the exclusion also matters. The Court of Appeals held that an exclusion for loss “caused by … freezing” did not bar coverage for water damage from a frozen and ruptured sprinkler head, because the loss was caused by the water damage, not the freezing itself.47 Many modern policies now expressly exclude “discharge, leakage or overflow” caused by freezing, but narrower wording should be read carefully.
If your frozen pipe claim is denied, confirm:
• The exact wording of the freezing exclusion or condition, including whether it applies only while the property is vacant or unoccupied, and any “do your best” or minimum-temperature endorsement;
• Whether the property was in fact occupied at the time of the loss;
• What you (and any property manager, caretaker, or family member) did to maintain heat: the thermostat setting, fuel deliveries, service records for the heating system, and the dates of each visit to the inside of the property;
• The utility records the insurer relies on, and whether any expert analysis of those records accounts for the actual conditions at the property; and
• Whether the loss was actually caused by freezing, or whether a separate failure (such as an unrelated leak or a mechanical failure) caused the heat to stop.
Before winter, or before leaving a property vacant or unoccupied, build these protections into your routine:
• Keep the heat on at a sensible temperature (and at or above any minimum stated in your policy), and confirm the fuel supply, such as an automatic oil delivery contract, is in place;
• Have the heating system serviced before the cold season;
• Arrange for someone to check the inside of the property and the thermostat on a regular schedule, give them written instructions, and keep a log of each visit;
• Consider a remote temperature monitor or alarm, and watch your gas and electric bills for unusually low usage;
• Respond immediately to any utility shut-off notice or loss of service, and if heat cannot be restored promptly, shut off the water supply and drain the system; and
• For a property that will be empty for an extended period, consider shutting off the water and draining the system, and notify your broker to confirm the property remains properly insured.
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Aboulafia Law Firm LLC works exclusively on behalf of policyholders and has decades of experience fighting insurance companies. Whether you are dealing with a residential or commercial property claim, we are ready to help you. If your insurer has denied your frozen pipe or water damage claim, don’t navigate the complex claims process alone. For assistance on your insurance claim, please contact us.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Footnotes
1. Billitier v. Merrimack Mut. Fire Ins. Co., 777 F. Supp. 2d 488, 490–92 (W.D.N.Y. 2011) (quoting policy) (emphasis added); see also Stephenson v. Allstate Indem. Co., 160 A.D.3d 1274, 1275–76 (3d Dept. 2018); McCabe v. Allstate Ins. Co., 260 A.D.2d 850, 852 (3d Dept. 1999). ↩
2. Farrell v. Am. Int’l Ins. Co., 2010 N.Y. Slip Op. 31501(U), at *7–8 (Sup. Ct. Nassau Cnty. May 31, 2010); ADAR 1165 LLC v. U.S. Liab. Ins. Co., No. 23-cv-6437 (JSR), 2024 WL 1513708, at *2 n.1 (S.D.N.Y. Apr. 8, 2024) (policy contained the requirement to maintain heat both as an exception to the freeze exclusion and as a policy condition). ↩
3. Platek v. Town of Hamburg, 24 N.Y.3d 688, 694 (2015); Corbel Constr. Co. v. Arch Specialty Ins. Co., 160 A.D.3d 703, 704 (2d Dept. 2018) (“where the existence of coverage depends entirely on the applicability of an exception to the exclusion, the insured has the duty of demonstrating that it has been satisfied”) (internal quotation marks and citations omitted). ↩
4. Stephenson, 160 A.D.3d at 1275–76 (exclusion “applies only when the insurer establishes that the insured failed to ‘use reasonable care’ to maintain the heat”); Place v. Preferred Mut. Ins. Co., 190 A.D.3d 1208, 1209–11 (3d Dept. 2021); Gallo v. Midstate Mut. Ins. Co., 45 A.D.3d 1492, 1493–94 (4th Dept. 2007); Dean v. Tower Ins. Co. of N.Y., 19 N.Y.3d 704, 708–09 (2012). ↩
5. ADAR, 2024 WL 1513708, at *3 & n.6 (placing the burden on the insured, who conceded that the provision was an “exception to the exclusion”). ↩
6. McCabe, 260 A.D.2d at 852 (internal quotation marks and citation omitted). ↩
7. Dean, 19 N.Y.3d at 708–09 (quoting Page v. Nationwide Mut. Fire Ins. Co., 15 A.D.2d 306, 307 (3d Dept. 1962)). ↩
8. McCabe, 260 A.D.2d at 852. ↩
9. Zimmerman v. Leatherstocking Coop. Ins. Co., 226 A.D.3d 1239, 1240–41, 210 N.Y.S.3d 316 (3d Dept. 2024). ↩
10. McAleavey v. Chautauqua Patrons Ins. Co., 195 A.D.3d 1551, 1552–53 (4th Dept. 2021) (ambiguous); Zimmerman, 226 A.D.3d at 1241 (unambiguous, declining to follow McAleavey). ↩
11. See ADAR, 2024 WL 1513708, at *3–7. ↩
12. Id. at *5. ↩
13. Stephenson, 160 A.D.3d at 1275–76. ↩
14. McAleavey, 195 A.D.3d at 1552–53. ↩
15. ADAR, 2024 WL 1513708, at *3–7. ↩
16. Nesher, LLC v. Realm Nat’l Ins. Co., 6 A.D.3d 242, 243 (1st Dept. 2004). ↩
17. Stephenson, 160 A.D.3d at 1275–76. ↩
18. McAleavey, 195 A.D.3d at 1552–53. ↩
19. Id. ↩
20. Gallo, 45 A.D.3d at 1493–94. ↩
21. See ADAR, 2024 WL 1513708, at *3–7; Place, 190 A.D.3d at 1209–11; Zimmerman, 226 A.D.3d at 1241–42; Farrell, 2010 N.Y. Slip Op. 31501(U), at *7–8. ↩
22. See McAleavey, 195 A.D.3d at 1552–53; McCabe, 260 A.D.2d at 852; Nesher, 6 A.D.3d at 243; ADAR, 2024 WL 1513708, at *3–7; Zimmerman, 226 A.D.3d at 1241–42; Stephenson, 160 A.D.3d at 1275–76. ↩
23. Stephenson, 160 A.D.3d at 1275–76; ADAR, 2024 WL 1513708, at *3–7; Farrell, 2010 N.Y. Slip Op. 31501(U), at *7–8. ↩
24. Gallo, 45 A.D.3d at 1493–94. ↩
25. ADAR, 2024 WL 1513708, at *3–7. ↩
26. Zimmerman, 226 A.D.3d at 1242. ↩
27. Brennor v. Metro. Prop. & Cas. Ins., 2014 N.Y. Slip Op. 32868(U) (Sup. Ct. Westchester Cnty. May 12, 2014), reargument denied, 2014 N.Y. Slip Op. 32861(U) (Sup. Ct. Westchester Cnty. Sept. 24, 2014). ↩
28. Landsman v. Dryden Mut. Ins. Co., 26 Misc. 3d 1211(A), 2009 N.Y. Slip Op. 52708(U), at *4–5 (Sup. Ct. Broome Cnty. 2009). ↩
29. Billitier, 777 F. Supp. 2d at 490–92. ↩
30. Nesher, 6 A.D.3d at 243. ↩
31. Stephenson, 160 A.D.3d at 1275–76. ↩
32. Brennor, 2014 N.Y. Slip Op. 32868(U). ↩
33. Landsman, 2009 N.Y. Slip Op. 52708(U), at *4–5. ↩
34. McCabe, 260 A.D.2d at 852. ↩
35. Place, 190 A.D.3d at 1209–11. ↩
36. Billitier, 777 F. Supp. 2d at 490–92. ↩
37. Zimmerman, 226 A.D.3d at 1242. ↩
38. ADAR, 2024 WL 1513708, at *3–7. ↩
39. Gallo, 45 A.D.3d at 1493–94. ↩
40. McAleavey, 195 A.D.3d at 1552–53. ↩
41. Nesher, 6 A.D.3d at 243. ↩
42. ADAR, 2024 WL 1513708, at *5 n.8 (citing Garner’s Dictionary of Legal Usage). ↩
43. Convention Plaza III, LLC v. Seneca Specialty Ins. Co., 147 A.D.3d 692, 693 (1st Dept. 2017). ↩
44. Read Prop. Grp. LLC v. Hamilton Ins. Co., No. 16 CV 4573 (CLP), 2018 WL 1582291, at *9–11 (E.D.N.Y. Mar. 30, 2018). ↩
45. Farrell, 2010 N.Y. Slip Op. 31501(U), at *7–8 (denying the insurer’s motion for summary judgment). ↩
46. See Zimmerman, 226 A.D.3d at 1242 n.2; Place, 190 A.D.3d at 1209–11. ↩
47. Album Realty Corp. v. Am. Home Assur. Co., 80 N.Y.2d 1008 (1992). ↩
