The human and financial losses caused by Hurricanes Harvey and Irma are only now being assessed. It goes without saying, of course, that these damages will be unprecedented in our nation’s history; with most estimates running into the tens, if not hundreds, of billions of dollars. In today’s post, the storm damage and accident lawyer at the Doan Law Firm will discuss the basic legal principles of storm damage liability claims and some of the remedies that may be available to those who have suffered losses related to the recent outbreaks of severe weather in the southern United States.
Floods and Storm Damage
As a rule, flood damage is not covered under most homeowners’ insurance policies. If such insurance was not legally in force at the time the damage occurred, the homeowner is “on the hook” for any costs associated with such damage.
According to the National Flood Insurance Program, a flood is a “… general and temporary condition where two or more acres of normally dry land or two or more [adjacent] properties are inundated by water or mudflow.” The “adjacent properties” portion of this definition allows property owners, such as those who live on property that is less than two acres in size, to obtain flood insurance coverage. There is, however, one additional definition that will cause many homeowners to have additional problems: What, exactly, qualifies as a “hurricane”?
The answer to his question is that in most states a hurricane is a “named storm” (such as Hurricane Harvey or Hurricane Katrina) and that name is applied to a storm by a federal agency such as the National Weather Service or the National Hurricane Center. On the other hand, “tropical” storms and/or weather systems that are “numbered” (such as Tropical Depression 16) are not sufficient to “trigger” what is known as a “hurricane exclusion.”
Hurricane exclusions may limit the amount of damages paid to homeowners who suffer losses that are directly attributed to these storms. In most states, hurricane insurance is available to qualified property owners but the premiums charged by insurers for such coverage can be quite high.
As many property owners have only recently discovered, flood insurance must be purchased 30 days prior to the desired date the policy is to take effect. Such insurance can be of two general types: as coverage purchased as an addition or “rider” to a homeowner’s existing property damage coverage or as a separate policy that covers flood damage only.
Liability and “Fallen Trees” From Hurricane Harvey
In many states, liability for damages that are the result of a tree falling onto your property rests with the tree’s “owner.” By “owner,” we mean the person who owns the property where the tree would normally be found prior to the storm’s development. In some states, such as Georgia, there is statutory (“written”) law that defines liability for fallen tree damage to another’s property; while in other states, such as Texas, liability in these cases is decided on previously-established common (“unwritten” or “case”) law. These concepts can be better understood by way of example.
In Georgia, liability for fallen tree damage is incontestable if the tree was known to be “dead or diseased” and the tree’s owner was aware (or should have been aware) of that fact. Even a “healthy” tree can result in liability if any part of that tree has interfered with your lawful access to, and/or reasonable use of, your property. As an example, tree limbs that encroach onto your property can lead to liability by the tree’s owner if a limb breaks and falls onto your roof or your car.
In common law states such as Texas, the guiding principle of falling tree liability is that no property owner should suffer a loss that is the direct result of another’s carelessness or negligence. Although many cases will need to be decided by either a jury or by arbitration, the principles of common law equity will usually apply:
- Property owners owe a duty to protect the rights and interests of other property owners.
- If a property owner fails to respect the rights and interests of others, that property owner has “breached” that duty.
- The loss experienced by one property owner would not have occurred had the other property owner not been negligent in his or her duty to others.
- No property owner should suffer a loss that could have been prevented if another property owner had exercised reasonable caution to prevent damage to another’s property.
- The property owner who breached his or her duty to another is legally responsible for any damages that are shown to be a result of negligence.
If these conditions apply to your storm damage losses, you may have the necessary grounds to file a civil lawsuit against the party that you believe to have been responsible for such damages.
Why You Need a Storm Damage and Accident Lawyer
Although the above-listed principles will be respected in the civil courts of all states, each court has some leeway as to how it will apply those principles. In practice, anyone who has suffered a loss that might be the result of negligence by another should contact an attorney as soon as possible after such a loss occurs.
There may be other legal remedies available to home and business owners who have suffered losses in the recent outbreaks of severe weather. Since, in many cases, these remedies will depend on state and local law, it is strongly advised that you contact an experienced storm damage and accident attorney to review the options that may be available to you.
For more information on storm damage law, please see our “How to deal with “Bad Faith” insurance claims” and “Recovering from Harvey: First Steps” articles posted on the Doan Law Firm website.