Who's insurance covers condo damage? - no negligence

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Latest post 11-17-2012 4:03 AM by jazzakbart. 58 replies.
  • 11-09-2011 7:36 PM In reply to

    • Smills
      Consumer
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    • Joined on 11-10-2011
    • CA
    • Posts 3

    Re: Who's insurance covers condo damage? - no negligence

    Hi, quick but related question.  I live in the lower unit, the unit above me had a hot water heater pipe burst and it flooded my unit. I do not suspect my upstairs neighbor was negligent.  I do not have insurance as I foolishly thought my HOA policy covered me (I didn't realize it only covered common areas and not the unit itself). I understand now that the HOA policy will not cover my unit, and my upstairs neighbor's policy will not cover my unit because there was no negligence.  Do I have any recourse? Can I sue my upstairs neighbor individually? It seems unfair I should have to pay for damage which was in fact caused by the neighbor upstairs and was no fault of my own?  Thanks in advance.

  • 11-09-2011 7:55 PM In reply to

    Re: Who's insurance covers condo damage? - no negligence

    Smills:
    Do I have any recourse

    No.

    Smills:
    Can I sue my upstairs neighbor individually?

    Sure. You can sue but you'd lose.

    Smills:
    It seems unfair I should have to pay for damage which was in fact caused by the neighbor upstairs and was no fault of my own?

    Your damage wasn't caused by your upstairs neighbor. You already acknowledged that he wasn't negligent. That means he didn't cause it and is not responsible for your damage.

    Smills:
    I do not have insurance as I foolishly thought my HOA policy covered me (I didn't realize it only covered common areas and not the unit itself).

    That's because you didn't read your HOA CC&Rs. It explains all that in there. Have you read them now?

    Own your mistake and learn from it. Go buy yourself a unit-owners policy.

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 11-10-2011 2:11 PM In reply to

    • Smills
      Consumer
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    • Joined on 11-10-2011
    • CA
    • Posts 3

    Re: Who's insurance covers condo damage? - no negligence

    Thanks so much for your quick and thorough reply.  I just learned that the upstairs tenant did not have a drain pan installed under their water heater. This drain pan, if properly installed and set up, would have also had a drain line so any overflow out of the pan would then be sent down a hose and drained.  As this was not in place, do you think it could constitute negligence?

  • 11-10-2011 3:15 PM In reply to

    Re: Who's insurance covers condo damage? - no negligence

    Smills:
    I just learned that the upstairs tenant did not have a drain pan installed under their water heater. This drain pan, if properly installed and set up, would have also had a drain line so any overflow out of the pan would then be sent down a hose and drained.  As this was not in place, do you think it could constitute negligence?

    Probably not.

    You refer to the upstairs "tenant." A tenant would have had nothing to do with the installation of the water heater and would not be negligent.

    As to whether the owner of the unit might be negligent, there's a couple of issues there. If the owner bought the place with the water heater already there, he would not be negligent. If the owner had the water heater installed by a plumber he would have relied on the plumber's knowledge and wouldn't be negligent. About the ownly way the owner could be negligent is if he installed the water heater by himself and the installation was faulty. Another issue is whether the drain pan was a code requirement. If it wasn't, then there is no negligence. If it was a code requirement, and the owner installed it himself, knowing that it was a code requirement and ignoring the requirement, then maybe there could be negligence. On the other hand it's possible that even a drain pan would not have prevented the water damage. You really don't know, you are just speculating and you would have to spend thousands to get experts to testify in court with no guarantee that there would be a determination of negligence.

     

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 11-10-2011 3:54 PM In reply to

    • Smills
      Consumer
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    • Joined on 11-10-2011
    • CA
    • Posts 3

    Re: Who's insurance covers condo damage? - no negligence

    Thanks again. Fast and informative!
    I shouldn't have used the term tenant.  The person with the leaking water heater upstairs is the unit owner.  We are in a building of multiple units and are part of an HOA.  I am 99% sure the upstairs person with the leaking water heater purchased the unit with the water heater already installed.  Our state does require that a drain pan and drain line be set up - this is part of the code.  Neither were.  I appreciate a drain pan can only hold so much, but the drain line would have drained the water (ostensibly). As the current owner likely bought the unit with water heater previously installed, perhaps the building developers and managers are liable? We have had multiple issues with water heates in our complex (all installed when the building was initially built 5 or so years ago).

  • 11-10-2011 4:20 PM In reply to

    Re: Who's insurance covers condo damage? - no negligence

    Smills:
    As the current owner likely bought the unit with water heater previously installed, perhaps the building developers and managers are liable?

    If, by managers, you mean the HOA, no, the HOA would have had nothing to do with the building of the units.

    Since the building is only 5 years old it's remotely possible that you can make a construction defect claim against the builder for the code violation. There shouldn't be any issues with water heaters in only 5 years.

     

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 11-11-2011 2:47 PM In reply to

    • b2bdc
      Consumer
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    • Joined on 11-11-2011
    • VA
    • Posts 2

    No insurance - no negligence

    I found this thread while searching google and upon reading your input to all these questions, I subscribed because you seem very knowledgeable and experienced. 

    Last week I had an unfortunate event regarding an overflowed laundry washer. I put the machine to run and after  I did I went to the bathroom. While I was in the bathroom a good 15 or 20 minutes later I noticed water started to seep under the door. I ran out and noticed that the washer had overflowed and there was a great deal of water all over my floor. I informed the building management and they came to inspect the problem. Since it was obvious that it had been the washer, they didnt have to open any holes in our walls. Then they proceeded to go to the unit below, where a considerable amount of water had falled from our unit. The water ended up doing some damage to the drywall downstairs and a little damage to a corner of the wood floors. Also, even while knowing that the damage was done by an overflowing washer, they went ahead and opened holes in the drywall downstairs to 'see where the water was coming from'. 

    Unfortunately we do not have insurance and the master insurance that covers the building, will only cover once the deductible of $5,000 is used up. 

    I already know for a fact that the owner dowstairs has insurance but her insurance has told her that there is no need for them to cover for anything since the building technically as a master insurance. 

    We had a Sears(GE Approved specialist) handy man come and fix the washer, ends up being the sensor that measures the water levels got busted some way. He fixed it and the washer is good to go. 

    Since all the this wasnt caused by negligence, am I personally liable for the repair of the damages downstairs? Apparently the wood floors that the unit below me has is "older" so it probably wont be easy to find. The management of the building is saying that we might have to pay for the ENTIRE apartment's wood floors to be replaced, since there is no way to obtain replacement planks on the original flooring. Is this true? It seems a little crazy if you ask me, but I dont know what the law says on this. 

    I live in Virginia. 

    I would greatly appreciate your input and thoughts on my situation!

     

    Many Thanks

    Tom.

     

  • 06-21-2012 12:19 PM In reply to

    Re: Who's insurance covers condo damage? - no negligence

    adjuster jack:
    Correct, you can sue and "allege" negligence. But you would have to prove (with evidence) that he was negligent. He wouldn't have to prove that he wasn't.

    That the machine was 10 years old has nothing to do with anything.

    You would have to show that the owner knew of a defect and failed to remedy the defect.

    Unfortunately, the discharge of water from an appliance is almost always sudden and unforseen. That would not be negligence even if it was 20 years old.

    There's certainly nothing stopping you from suing. But when you tell the judge he's negligent because the washing machine was 10 years old, you'll lose. 

    Well, after 9 long months of dealing with insurance companies and continually getting reduffed - I proceeded to small claims court and took maters into my own hands. I simply informed the judge of the following:

    I have evidence and statements which confirm that a washing machine in their unit broke, and

    despite notification of that damage (and obvious water emanating from the machine) the machine

    was used continuously—exacerbating intrusion into my property.

     

    Based on this, their action caused damage to my property, may be recovered

    under Cal. Civ. Code § 3281. Alternatively, a general private nuisance action may be brought

    under Cal Code of Civ. Proc. § 731, as my property has been “injuriously affected,”

    and “the owners’ personal enjoyment lessened by a nuisance,” as defined in Civil Code § 3479.

    That “nuisance may be enjoined or abated as well as damages recovered therefor.”

     

    Further, the continued use of the machine in the face of the warnings, and water accumulation at

    the bottom of the machine constitutes negligence. In California, a duty to exercise due care arises

    from the ownership of property, alone. See, e.g., Sprecher v. Adamson Cos, 30 Cal 3d. 358, 367

    (1981). See also Cal. Civil Code Sec. 1714(a). In particular, “ [e]veryone is responsible, not only

    for the result of his or her willful acts, but also for an injury occasioned to another by his or her

    want of ordinary care or skill in the management of his or her property or person.”

     

    I won in court - the case was a slam dunk in my favor. They tried playing that old insurance trick saying that they had no prior knowledge of a problem, therefore they were not at fault - which may work in the world of claim denials - but in front of the judge he literally laughed at them. He asked if the washing machine failed because it was struck by lightning or because of an act of God - they quitely replied, "No sir." 

    I got a judgment in the mail a few days later, and not too long after that a check.

    My advice to those in legal matters reading these discussion boards - see a lawyer.  The discussion typically seen on this site is of the quality you would expect from a discussion board—brief, and focused on the facts provided. It does not discuss the whole facts of the case. It may be more expensive - but you'll have more peace of mind with what is a very real situation your faced with.

  • 06-21-2012 12:37 PM In reply to

    Re: Who's insurance covers condo damage? - no negligence

    Congratulations.

    Nice to see a success story based on my evaluations and suggestions.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 07-20-2012 3:31 PM In reply to

    Re: Who's insurance covers condo damage? - no negligence

    I'm in a very similar situation but with a few complications.  

     

    I'm in the 2nd level of a 4 floor condo building.  I am renting my condo out to 2 good, solid tenants.  This past week, they detected a leak in their bathroom ceiling. I imediately came over and called the unit owner above me, and our property manager.  The owner, who is also a trustee, did nothing despite my and the property  managers best efforts to get in touch with him.  The owner after 3 days eventually got into the unit and identified the cause of the issue as being in the unit above HIS unit.  This unit owner admited to a leak occuring in his dishwasher and had had it recently repaired.  

    My unit is taking the brunt of the damage, my entire ceiling collapsed. I had restroation services enter the  unit and make the bathroom useuable, albeit unpleasant with no ceiling.

    I have filed a claim with my homeowners insurance policy, my property m anager has hired a private adjuster to assess the damage in the 3 units.  My insurance company is telling me that the master insurance is responsible, not them.  That policy has a big deductible, mine is only 500. From the cross talk in this thread, it sounds like my insurance is responsible for my repairs as the top level owner with the leak wasn't provably negligent.  However, my claims rep is telling me I have to deal with my buildings master policy.  

    Based on waht is being sid here, and my CC&R, the plumbing failure was the guys disposal and dishwasher which was with in the unit walls, tehre fore it would NOT be involvign the master policy.  Further, regardless of who/or what caused hte damage since no negligence is involved, my policy should cover the repairs to my unit.  True or false?

  • 07-20-2012 3:53 PM In reply to

    Re: Who's insurance covers condo damage? - no negligence

    Would have been a far better idea to start a new thread instead of reactivating a very old one, 'cause folks get invested/caught up in reading as though it were new and miss the date references.  :) 

  • 07-20-2012 10:37 PM In reply to

    Re: Who's insurance covers condo damage? - no negligence

    kreepyzeke:
    Based on waht is being sid here, and my CC&R, the plumbing failure was the guys disposal and dishwasher which was with in the unit walls, tehre fore it would NOT be involvign the master policy

    If you are referring to liability for negligence, you are correct that the master policy is not involved.

    kreepyzeke:
    Further, regardless of who/or what caused hte damage since no negligence is involved, my policy should cover the repairs to my unit.  True or false?

    True.

    But that depends on the definition of "unit" in your CC&Rs.

    You'll need to study that definition carefully AND provide a copy of the CC&Rs to your claim rep.

    When I was adjusting condo water claims I always got the CC&Rs whether it was a unit claim or an HOA claim because of the possibility of subtle differences in definitions.

    .

    kreepyzeke:
     That (master) policy has a big deductible

    That doesn't mean that you have to pay for HOA defined damage. It only means that the HOA pays for HOA defined damage out of it's own funds.

    kreepyzeke:

    My unit is taking the brunt of the damage, my entire ceiling collapsed. I had restroation services enter the unit and make the bathroom useuable, albeit unpleasant with no ceiling.

    Provide me with a list of specific items that were damaged and I can give you some idea of what might be unit and what might be HOA.

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 07-23-2012 11:29 AM In reply to

    Re: Who's insurance covers condo damage? - no negligence

    True.

    But that depends on the definition of "unit" in your CC&Rs.

    You'll need to study that definition carefully AND provide a copy of the CC&Rs to your claim rep.

    When I was adjusting condo water claims I always got the CC&Rs whether it was a unit claim or an HOA claim because of the possibility of subtle differences in definitions.

    ______________________________________

    They asked for this, and I provided it readily. I am obviously not an expert, but the definition seems pretty standard to me. Studs in is on me. The imediate reaction of the claims rep with Vermont Mutual immediately said that they weren't responsible and that they'd contact our master insurance policy holder for me.

    Definition of unit from our deed:
    (C) Each Unit includes the ownership of all utility lines;
    heating, plumbing, electrical, and other apparatus and other
    equipment, which exclusively serve and are located within the
    individual Unit.

    (iv) All conduits, chutes, ducts, sewer, drainage,
    water and other pipes, plumbing, wiring, flues and other
    facilities for the furnishing of services described above in
    subparagraph (iii) which are contained in portions of the
    -
    Building contributing to the structure or support thereof, and
    all such facilities contained within any Unit which serve parts
    of the Building other than the Unit within which such facilities
    are contained, together with an easement of access thereto for
    maintenance, repair, and replacement, as aforesaid;

    DARIES:

    The boundaries of the Units with respect to the floors.
    Ceilings and the walls, doors and windows thereof are as
    follows:

    A.

    Floors,

    plane of the upper surface of the
    concrete slab in the ground level units
    and the plane of the upper floor joists
    in all other units.
    the plane of the lower surface of the
    ceiling stud8.

    B.

    Ceilings,

    C.

    Perjms~~

    the plane of the surface (acing such
    unit of the wall studs or the plan of
    the surface facing such Unit of the
    masonry where masonry is th. finish
    material.
    Exterior Duilding
    Walls, Doors and
    Windows.
    CL) walls,
    the plane of the surface

    D.

    facing such unit of the
    Wall studs.

    the exterior surface of
    the doors utilized to
    provid, ingress to and
    egress from each unit.
    (iii) window., the interior surface of
    frames.
    the glass and Window

    (ii) doors:


    ______________________________________________

     

    As far as what will be needed to be replaced...

    Ceiling, walls, flooring, shower backing walls, tile. Loss of use will also be an issue as it is currently inhabited by tenants. I'll need to put them up in a hotel while repairs are done.

     

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