As discussed in our article on torts, property torts allow recovery of damages caused by the negligence of another person that results in your property being damaged. Further, an owner of property is allowed to seek damages if adjoining property is operated in a manner that causes damage to one’s property.
Thus, if I negligently maintain my plumbing so that a flood occurs and damages your property and the contents, you can sue me for the damages caused, but even if I was not negligent but my pipe bursts and causes you damage, you may still be able to recover damages as well.
Water is uniquely destructive and can result in deteriorating conditions months or even years after the event occurs which results in the initial water damage. This is caused by dry rot and/or mold spreading in previously soaked locations. It also can cause damage to property seemingly remote from the locale.
Examples are water seeping inside of a building through multiple floors or along the inside of walls for hundreds of feet. And since one is often responsible for waterways that pass through property, failure to maintain the waterway that can cause damage to neighbors or even remote property downstream can result in significant liability. Our office represented property owners accused of not shoring up the bank of a creek that ran through their property which, during a rainstorm, collapsed, dammed up the stream, and allegedly undercut the foundations of the home across the creek.
Property damage can be very frustrating, but a denied claim from your once-trusted insurance company can be calamitous. Water damage can come as a result of a leaking roof, a pipe burst in your home, or even due to external factors such as storm or flood. The cause and extent of the water damage needs to be clearly defined, as your insurance policy may not cover all types of water damage. Some insurance providers have often declined coverage on water damage claims over the years predicated on definitions in their insurance contracts, often not read by their customers.
This article shall give an overview of the legal and practical issues raised by damage to property and business caused by water.
Flood versus Water Damage:
An important issue for insurance claims is to differentiate between water damage and flood damage. A typical homeowner’s insurance policy will specifically dictate that water which causes damage to a home prior to coming into contact with the ground is not to be considered flood water. If the damage is in fact considered to be as a direct result of flood water, you should then consult your flood insurance policy. Flood damage can be appropriately defined as damage directly caused by water that has previously been on the ground. Certain areas in the United States are more prone to flooding than others and may require a flood insurance policy to be purchased. At times, flood insurance is not available due to the high likelihood of flooding. Occasionally, the government will provide policies for those areas, but one should consider whether the risk is worth it. If the insurance company declines premiums due to the high risk of flooding, do you really want to risk your home and its contents?
Duty to Mitigate Damages:
The law imposes upon person a duty to minimize damages if reasonably possible. Thus, at the first sign of water damage, it is important to initiate any feasible emergency mitigations possible to your property.
Expert for Full Damages:
Consider hiring your own private expert to evaluate your water damage claim. Water or flood damage can leave homes vulnerable to even further damage, resulting from weakened walls, doors, windows, appliances and other types of structural damage. If theft, explosions, or fire occur as a result of water damage, these subsequent damages may be covered by your homeowner’s insurance even if the initial disaster is not.
Additional problems to be aware of that can come as a result of water damage, are mold and decay.
Another possible build-up following any type of water damage, that can cause harm to the home as well as its residents, is mold. Mold can lead to health problems, such as respiratory infections, bronchitis, and asthma. Because mold is directly caused by moisture, it is vital to make repairs as soon as possible following water damage as a preventative measure. Mold damages typically require laboratory testing to identify the best course of action to remedy the particular type of mold.
Decay can be defined as the decomposition or decline in the excellence of an object. Decay is commonly found in wood, also referred to as wood or dry rot. Decay has the possibility of attracting insects such as termites and carpenter ants.
Ice Dams and Roof Collapse:
The weight of ice and snow can cause a roof to become damaged or even collapse. The water content of snow can vary but ice is made of water; therefore, it is very heavy as one inch of water weighs 5.2 pounds per square foot. As it accumulates on rooftops, the weight of snow and ice can damage and, in some cases, destroy a roof.
Ice damming is a second damaging event that is caused when the warm air that is circulated in a house meets the ice and snow on a roof, then causing the bottom layer to melt. The water then flows to the edge of the roof, which is typically poorly supported by the structure, and thus there is no warm air underneath it. This water builds and freezes at the edge of the roof and the continued water flow will build up and work its way under shingles. This often causes shingles to be dislocated and water can work its way through the ceiling and into homes.
An injured party is entitled to all damages suffered due to intrusion of water from an adjoining property or unit if the owner or occupant was negligent or failed to maintain the property correctly. Additionally, one may be liable even if no negligence was involved if a duty imposed by statute, local ordinance or common law riparian (water) rights is involved.
Most claims for water damage involve insurance companies seeking to limit their own liability by denial of coverage or limiting the amount of coverage that will be granted. Many owners of real property are dismayed to discover the limits of coverage that a careful review of the policy may have revealed when purchased.
And note that the damages may exceed merely the cost of repair. Assuming a business is interrupted, or a family must move out of their home, additional damages may be demanded. One client of this office had a small fire, but it occurred in their office in the middle of the night, the automatic sprinkler system turned on and stayed on for four hours because the building owner neglected to hire a security company who would have seen that the fire was out and turned off the water of the defective sprinkler system. Everyone faced liability since all the floors of the five story building suffered water damage, interrupted business and even led one company into failure due to its inability to meet its own contractual commitments. We saw negligence in having the fire possibly; negligence in design and maintenance of the sprinkler system; negligence in hiring the security company. All from fire causing water damages and the damages ranged from destruction of property to destruction of a business.
Water damage is both pervasive and capable of compounding the damage over time. It can lead to myriad claims and cause related types of damage and be caused by related type of damage, such as fire or flood. One thing is certain: ignoring it compounds it and the wise person will immediately investigate not only how to mitigate the damages but how to either seek relief or minimize the damages that must be paid to others. Well thought out plans for insurance and prevention must be created and maintained over the years.