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 Posted: Wed Nov 16, 2011 10:24 pm Post subject: Water damage coming into finished garage from neighbor |
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We have a finished garage that had carpet installed in it. The room was built to code and a class A contractor was hired for all the work.
We discovered that a portion of the carpet was wet and moldy, it was removed and we hired a mold remediation company, professional landscaper, civil enginner, home inspector and a structural engineer. It was determined that the water was coming from the neighbors property. The proper repair to prevent further water damage was explained but, we can do have it done because we need access to his property (in a townhouse). The neighbor refuses to allow us access to the property.
This has been going on for over two years. We went to court but lost. Somehow the neighbors attorney convinced the jury that the water COULD have come from a leaky carpet cleaner. The carpets were cleaned about 12 hours before the water was found during a tenant changeover.
Today, I had a moisture test done and we found out that moisture is still coming into the home and we still can not do anything about it.
When we sued the neighbor, he filed and insurance claim but would not allow them to offer us a settlement. We have contacted our insurance company but since the water technically hit the ground before coming into our home, and we do not have flood insurance, they do not cover it and will not help us.
I am at a loss as to what I can do next. We have exhausted over $20k of our savings to try to protect our home yet everywhere we turn we are told that no one can help us. I feel as though we never would have had to go through all tat expense if the neighbor, first off, would have granted us access to that area where his proeprty touches our to make the repair, or filed his claim and allowed them to reimubrse us for the damage to our home.
Can I make a claim against his insurance company or have them open his old claim? Could I try to get my insurance compani to go ahead and pay us and subrogate for us or do I need to sue him again?
Thank you in advance. |
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AshleyT
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| Posted: Wed Nov 16, 2011 11:35 pm Post subject: |
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| Quote: | | Can I make a claim against his insurance company or have them open his old claim? Could I try to get my insurance compani to go ahead and pay us and subrogate for us or do I need to sue him again? |
I'd suspect double jeopardy would prevent you from suing again (you can't keep suing a person for the same reason until you win. The case has been settled. You could only appeal... which would be EXTREMELY difficult. The other person's insurance would only pay when their insured is "legally liable" for the loss. As the court has ruled there is no legal liability, the claim would be denied.
Your insurance won't pay for a number of reasons but the main one as this is flood and flood is excluded from your home owners policy. You'd need to have flood insurance.
What was happening before you converted the garage? It sounds like you had been living in the home and then after the garage was converted you started to notice the water. Can you not find a contractor that could come up with another solution? Perhaps an attorney could find a different reason to file suit against your neighbor.
None of this is really an insurance question at this point. |
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tcope
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| Posted: Thu Nov 17, 2011 12:23 am Post subject: |
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We noticed that the garage always smelled like mildew but being first time homeowners we never thought of anything like this. We can not prove that it was happening before but at this point there is no flooring down in there and the moisture test and infrared camera test I had done today confirm that there is excessive moisture coming into the house and the area that is the most wet lines up with the location of the neighbors downspout.
We sued for negligence and trespass by way of water. We were suing for damages. We are supposed to go back for the court ordered injunction to make the repair to the outside of our property.
So basically you are saying that since we lost in court before, the neighbors insurance compay will most likely deny our claim and we are just screwed.
We are just going to have to put up with this excessive moisture and mold problem in our home?
We are required to disclose this issue to any potential renters or buyers and most people (I am a REALTOR) I encounter are not interested in inheriting an issue that could be a major health concern.
So selling the house is really not an option. I don't know what else to do or how else to sue him.We did not have the moisture reading or infrared camera test at the time of trial and we are beyond the time frame to appeal. |
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AshleyT
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| Posted: Thu Nov 17, 2011 1:13 am Post subject: |
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| Quote: | | So basically you are saying that since we lost in court before, the neighbors insurance compay will most likely deny our claim |
Most likely. The other person's policy only pays when the person is legally liable for damages. In this case a court is stating the person is not legally liable (same thing as you not proving they are liable).
You mentioned that the other person told their carrier not to pay the claim. So it sounds like they knew about the loss. That is, they had a claim reported. As such, the other person's carrier would have provided a defense in court. When the court ruled the other person was not found liable, your claim was effectively denied. I guess the carrier probably should have sent you a written denial but I can't fault them for not sending one.
| Quote: | | We are supposed to go back for the court ordered injunction to make the repair to the outside of our property. |
Go back to court as in, an attorney is representing you in this matter? If so, you really need to be seeking legal advice from your paid attorney.
| Quote: | | We are just going to have to put up with this excessive moisture and mold problem in our home? |
See my prior post.... are there not still other possibilities out there? Did you have a home inspection done prior to buying the home? Was there any signs of moister in the garage that home inspector should have seen? Can you show that the prior home owner should have known about the situation? If so, you can sue those people. But they will probably use the same defense that the neighbor used
It appears that the court found that you could have caused this damage. As such, yes... you may have to live with the damages. I'm not saying this is correct... perhaps your attorney was terrible... I don't know.
Personally, I'd be contacting other contractors to see if there is anything else that can be done to prevent additional damages. Also, why is this neighbor against making changes? Does it affect his/her property? Perhaps instead of spending money fighting, you could offer him/he some compensation to allow what you want to do. He's probably less willing now that you've sued him but you could ask/try to work something out. |
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tcope
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| Posted: Thu Nov 17, 2011 1:33 am Post subject: |
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They did acknowledge that they modified their property in the few months prior to us discovering this issue. We did have a home inspection but it is not common in our area for home inspectors to perform moisture tests.
Our attorney did make some mistakes and we have now exhausted all our resources to hire a new attorney or to continue paying the previous attorney.
When we went to court it was seeking damages, the jury did not award us damages. It had to be a unanimous decision by the jurors. Our attorney forgot to call one of our main witnesses, ServPro, who could have testified as to the amount of mold present and that it could not have accumulated like that in less than 12 hours.
I just don't understand how if new evidene is found that clearly shows that the water is not coming from my property, I can not access that side of my house because of the neighbors refusal to allow access, it is coming from his property...I am just screwed.
It seems to me that the law would be giving him the right to destroy my home just because he denied access and we just have to deal.
I am not saying that you are wrong, I really appreciate your insight, I just think it is a very flawed system. |
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AshleyT
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| Posted: Thu Nov 17, 2011 2:03 am Post subject: |
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As mentioned, this is now more of a legal issue. Perhaps you can find an attorney that will file suit against your prior attorney as it seems like calling a main witness is something you could hold the attorney responsible for. Also, perhaps a new attorney can file an appeal based on the prior attorneys incompetence.
The law states that you have a duty to prove your case. This was not done. You just can't accuse someone of something and than expect them to pay and not _prove_ that they are at fault. As mentioned, it seems this issue is with your attorney.
I'd recommend you speak to some attorneys who can review your prior attorneys actions and let you know if you now have a case against this attorney and/or grounds for an appeal. |
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tcope
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