Condo damage

[dcreed]

I recently sustained over $18,000 worth of damage due to burst pipe from an upstairs neighbour. Her insurance company says that because she was not negligent, she is not liable for the cost of repair and replacement. Is this true?

 

[Michael Wechsler]

Thanks for your reply. The unit is owner occupied.
I got her insurance details and my wife contacted the insurers directly. They were pretty obnoxious to my wife. Once they refused to even process the claim, the unit owner would not even talk to us directly - she said that we should deal with the insurance company only. That is what really irked us. Her attitude was: if my insurance does not cover the damage, then I am not responsible. This happened as we came back from vacation. It was a VERY stressful few weeks for us, during which my wife suffered a miscarriage - brought on no-doubt by the stress.
Another thing worth noting is that the insurance company said that she was not negligent, and therefore not liable.
However, the leak was caused by an overflow pipe that was not properly plumbed. Does this count as negligence?
My question is can we sue?
If so who should we sue?

First, do you have homeowner's insurance? Did you speak to them? Just curious.

Second, semantics are important. Your neighbor's insurance company might not cover your neighbor's negligence in this instance but that doesn't mean your neighbor isn't liable just that her insurance company won't pay! I tend to find that insurance companies will try to intimidate you to go away and not pursue a claim even though legitimate. I'm sure you aren't surprised.

Third, sounds like you answered your own question regarding negligence although I wonder how you know that. One can't be sure who can be sued for negligence -- the plumber who did the work or your neighbor for either negligently hiring an incompetent plumber or knowing of the situation and being negligent in remedying it. Perhaps you could sue both. Was the plumber licensed/authorized to do the work?

Additionally, there are many theories to sue your neighbor and just because you may be precluded from negligence doesn't mean that there aren't other causes of action depending upon the facts.

It sounds to me like there is more to this. Remember that insurance companies are more experienced in dealing with people like you than you are them although you may be successful in negotiating a good settlement. Keep excellent paperwork, a journal of things that happened, all your receipts. The more prepared the better off you'll be. If you really sustained over $18,000 in damages then you might be best getting a consultation with an attorney and moving forward. Prepare yourself in advance with all your receipts, a schedule of damages, and your own log of events. You will be very glad you did and maximize your time.