Top floor flooded my unit
Posted 30 November 2012 - 12:01 AM
On top of that, we have unfortunately purchased the wrong insurance that only covers $2,500 of property damage. At the time, we provided our agent the CC&R and asked him to get us a policy that will be suitable for a rental unit and due to ignorance (and stupidity), we purchased a policy that does not protect our property at all, instead they provided us with a $25,000 personal property protection that we do not need since it is a rental unit. We thought the 25K was for property damage but it was not. We have now spent $18K in repairs and are told that since the upstairs unit was not negligent, the claim liability is denied and will only be covered for $2500.
The HOA Rules does state for a Dryer Vent and Washing Machine Lint Catcher Maintenance: Clean your dryer vent lint screen and washing machine lint catcher after each use. If your dryer vent lint screen and/or washing machine lint catcher is damaged, it/they should be replaced immediately.
Is there something I can do to get the insurance company from the upstairs unit to cover some of the expenses? Also, we tried to contest that we were sold the wrong policy with our insurance company, but we had it for 3 years and blindly believed we were protected and now our agent is deceased as well and their offices told us that we should have reviewed it upon receipt (which we should have) and that they cannot help us other than provide the $2500.
I guess I mainly need to prove negligence in order to have the insurance company to pay any portion of the repairs. Does the lack of maintenance of the drain line and pan constitute negligence? Who is really responsible to maintain the drain lines within the walls? The unit owners or the HOA?
Any advice will be greatly appreciated!
Posted 30 November 2012 - 08:20 AM
That would be impossible to prove given the circumstances you describe, since you don't know that something's clogged until it overflows.
That the owner didn't routinely snake the drain line as a preventive measure is not negligence, regardless of what the rules say.
As for who is responsible for the drain line, I'm guessing that the affected part of the drain line was the line that services only the unit where the washer overflowed. That means that the HOA has no responsibility for it.
You are certainly free to file a lawsuit against the upstairs owner but expect his/her insurance company to assign a very good lawyer to defend the case and your cost to hire a lawyer might turn out to be a waste of money.
Bottom line here is that the negligent party was the person who didn't read and understand his insurance policy when he bought it.
I really had to throw that in because I read so many similar posts from condo owners who didn't buy the right insurance or didn't buy any insurance at all. There's really no excuse for that.
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Posted 30 November 2012 - 09:54 AM
Posted 03 December 2012 - 09:26 PM
To prove negligence you would have to show that the washing machine owner knew, or should have known, about the clog and then ignored it.
That's one way to prove negligence, but not the only way. Another way would be to show that the owner failed to take reasonable action to maintain the line. A doctrine called res ipsa loquitor probably could be used to meet the burden of proof and shift the burden to the owner to demonstrate that he/she was not negligent.
That the owner didn't routinely snake the drain line as a preventive measure is not negligence
It's not? Says who? What published California case(s) support(s) your conclusion? In the absense of a published decision that is squarely on point (or nearly so), the upstairs owner's chances of successfully moving for summary judgment are very remote, which means the question of negligence would be submitted to the jury. It seems to me that your statement can be reasonably interpreted to mean that you believe no jury could possibly find negligence under these circumstances. If so, then you are extremely ignorant about California juries.
The poster may also have a viable claim against the agent who sold a policy that did not meet the poster's needs. Of course, the poster would have to prove that he/she clearly communicated his/her needs to the agent at the time of purchase.
Posted 14 February 2013 - 09:42 AM
There may be a real property issue here based upon your provisions in the CC&Rs. Repair and maintenance of the common areas are the responsibility of the association. A lawyer should review your CC&Rs to determine whether there was damage to any common areas.
Edited by FindLaw_AHK, 14 February 2013 - 11:08 AM.
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Posted 15 February 2013 - 01:02 PM
If the water supply line from the machine to the wall failed in the form of leaking it would be the same thing. Its an accident and the unit owner is ultimately responsible.
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