What to do if my mother’s rooftop swamp cooler sprung a leak and flooded her family room but her insurer refuses to pay saying the roof was old and worn?

Should my mother sue the insurance company?

Asked on July 27, 2015 under Insurance Law, California


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

The answer, unfortunately is, "it depends." It depends on:

1) The exact terms of the policy, and the exclusions from coverage contained in it. An insurance policy is a contract, and the insurer must provide coverage when--and only when, and under such circumstances as--the policy indicates.

2) Whether the leak was due to a lack of cooler or roof maintenance or not; while you do, as indicated above, need to review the exact language of your policy, as a general matter, leaks or damage due to a lack of maintenance is not something for which your insurer must pay; insurers pay for unexpected or unpredictable catestrophic loss, not for the degredation of structure over time and its consequences.

If you believe that, given the facts and the policy, that the insurer is avoiding its obligation to pay for this loss, your mother could sue them for breach of contract: for not honoring their contractual duties under the policy. For amounts less than your small claims court limit, suing in small claims court, acting as your own attorney ("pro se") is a good option.

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