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My basement flooded up through one of the floor drains in a downpour last night. A couple of other homeowners on my city block had the same problem. Who can I sue for the $5,000 the cleanup is costing me?
Words by Nelson P. Miller
Not so fast. It all depends.
Generally, we have responsibility for our own property. If something happens to it that is no one’s fault or is our own fault, then we bear that loss. Just because we suffer a property loss does not mean that we have a right to recover from it. While some government programs provide for disaster relief, the law generally requires you to show more than simply that you incurred a loss in order for you to have a remedy.
The law’s way of looking at it is that you need liability before damages. If you have homeowner’s insurance, then your insurance may cover that loss, depending on the coverage you purchased, applicable exclusions, and other details about the event.
Insurance is contractual – a promise according to the terms of the policy. You need to read the policy. If the policy insures water damage due to backed-up drains, then the insurer should pay, again assuming that no exclusions apply. Homeowner’s insurance typically covers property damage due to accidents or other unintentional occurrences. You need not prove that anyone, in particular, is at fault in order for you to recover insurance.
Indeed, you may even be at fault, and yet you would still likely have the coverage. On the other hand, insurers like to exclude flood and other water damage, particularly from backed-up drains. Go figure – fire damages might have been better for you than water damage. So, get your homeowner’s insurance policy if you have one, and read it and all exclusions and riders closely with the help of a lawyer if necessary. You probably would not need to sue anyone. Simply make the claim to the homeowner’s insurer. If you bought the coverage, then the insurer will probably pay for the clean-up.
If it does not pay when it should, then you can sue the homeowner’s insurer. If the homeowner’s insurer does pay, then it may sue someone else anyway to try to recover its payments. The law calls the insurer’s action a right of subrogation, but you need not concern yourself with that right. Let’s say, though, that you don’t have homeowner’s insurance or that the insurance excludes water damage from backed-up drains. You may yet find some relief.
Here, though, you or (more likely) a plumber or contractor whom you consult about preventing a recurrence need to determine why the drain backed up. If someone was at fault for causing your loss, then you may have a negligence action against them. Perhaps the builder of your house designed, supplied, or installed a defective drainage system lacking a required backup valve or some other feature.
Maybe your neighbors unreasonably diverted water off their property and onto your property in their drainage designs. If so, then their liability insurance may pay for your loss. If you are thinking about suing the city, then think twice. The city may well have done something wrong in the design or maintenance of the storm drains. Try to find out. Speak to the city workers who come by checking storm drains. Contact the public-works department asking for answers. If no one will talk, then contact your council representative.
If that fails, then consider making a Freedom of Information Act request to inspect all public records relating to the storm drains in your neighborhood and the storm that night. Maybe you will learn something about the city’s storm drains in your neighborhood. If the city knew or should have known of a problem but did nothing about it, then you might possibly have a claim. The city may well have liability insurance to cover your loss, or it may be part of a municipal league through which it shares accidental-loss costs with other cities. Whether or not you learn anything about the city’s responsibility, consider asking the city to put you in touch with its claim representative.
That representative may tell you all you need to know. If you do find that the city was at fault but it won’t pay up, then your challenge in suing the city may be governmental immunity. State law determines whether you have the right to sue state or local agencies. Some states grant broad governmental immunity, making it very hard to sue and win. Others grant little or no immunity, making winning much easier if you have a case involving the city’s carelessness. Some states also have specific statutes having to do with damage from backed-up sewers and storm drains. At that point, you would likely need a lawyer to help you determine your rights. In sum, your own insurance is your best bet.
Beyond that, if the downpour was just a 100-year-flood kind of rain, an unpredictably freakish event, and no one was at fault, then you might be up the proverbial creek without a paddle. Yet for $5,00, it is worth checking out, isn’t it?
To read more from Nelson Miller, check out his book Top 100 Questions Friends & Family Ask a Lawyer on Amazon.
The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only. Information on this website may not constitute the most up-to-date legal or other information.
