What can I do if I have water coming into the basement on all 4 walls of my ranch style home and my insurer calls it surface water so will not open a claim?

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What can I do if I have water coming into the basement on all 4 walls of my ranch style home and my insurer calls it surface water so will not open a claim?

It has rained for 8 days in a row. We have had 6-8 inches of rain over this period of time. We were in flood warnings 3 times and have a major snow storm. What can I do to get the insurance company to pay up?

Asked on December 17, 2014 under Insurance Law, Massachusetts

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

If you believe that your insurer is violating their contractual obligation to pay compensation for a loss and cannot voluntarily resolve it with them, your recourse is to sue them for breach of contract; in the course of the lawsuit, you'd have to prove that under the facts of the situation, they are obligated to pay but did not.

As stated, insurance policies are contracts; check what it says about flooding, including any definitions, such as of "surface water," in the contract/policy. The insurer has to pay if, applying the facts to the terms of the contract, they should pay--and they do *not* have to pay if the contract allows them to not pay. So reviewing the precise terms of the contract is vital to determining whether you should sue.

A major issue may be whether the water come in from the surface--e.g. has accumulated on the surface of the ground and/or run off along the surface, and then come in near the top of your basement from the surface of the land, or contrariwise, has come up from the ground, such as through cracks in the slab, sue to hydrostatic pressure (the water table below ground rising and forcing water in from below). In the former case, even if the source of the water was rain, it may well be "surface water" under the definitions of your policy and so not be covered; in the latter case, it very likely would not be surface water.


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