EXCESSIVE RAIN CAN CAUSE PAIN: FLOODING AND SEWER BACK-UPS CLAIMS

Heavy rains this summer in many parts of the country, including Illinois, have resulted in flooded basements and other damage for some property owners. Storm water inflow into a sanitary sewer system can surcharge the system, causing sewer back-ups into houses. Surface water can inundate window wells and crawl spaces. Power outages can render sump pumps helpless.

Review of a few Illinois court decisions suggests some of the issues a property owner may encounter when seeking to recover for damages caused by such heavy rain events.

One obvious issue concerns recovery attempts under property insurance policies. In Industrial Enclosure Corp. v. Glenview Insurance Agency, 379 Ill. App. 434 (1st Dist. 2008), an insurance policy covered sewer back-ups but excluded flooding. Thus the coverage did not cover flooding damage in a building primarily due to creek overflow and surface water runoff caused by a 17 inch rain event. The court found that the insurance agent had no duty to advise customers of the import and meaning of provisions of policies faithfully procured according to the customer's requirements. The court said that the burden is on the customer to know the meaning of the policies it accepts. See also Smith v. Union Automobile Indemnity Co., 323 Ill. App. 3d 741 (2d Dist. 2001), upholding a policy exclusion for water damage primarily due to rain caused surface water flooding.

Another issue can be whether a property owner can recover from a municipality for sewer back-ups from the town's sanitary sewer system. In Dial v. City of O'Fallon, 81 Ill.2d 548 (1980), the Illinois Supreme Court affirmed that a city can be liable for sewer back-ups into a house during heavy rainfall, as a trespass. In Hull v. City of Griggsville, 29 Ill. App. 3d 253 (4th Dist. 1975), the court held that a city was liable for sewer back-up damage in a basement caused by a broken tile in the city's sewer system. The court said that, since the city had exclusive control of its sewer system and the customer did not contribute to the happening of the damage, the city was responsible.

A related issue is whether a municipality can claim immunity from liability for sewer back-up damage. This is a complex question. In Trtanj v. City of Granite City, 379 Ill. App. 3d 795 (5th Dist. 2008), the court held that a city did not have immunity in a suit to recover damages for sewer back-up to the basement. But see Alexander v. Consumers Illinois Water Co., 358 Ill. App. 3d 774 (3d Dist. 2005), where a sanitary sewer main became clogged from debris when a home owner cleaned out the lateral service line serving the homeowner's property. The court said that the village was immune from claims that it should have adopted rules prohibiting home owners from discharging debris into the sewer service laterals.

These court decisions provide an example of some of the issues a property owner may encounter when seeking relief from damages caused by heavy rain event flooding and sewer back-ups. However, it would seem that a good beginning point for anticipating the consequences of heavy rain events is to know the terms of one's insurance policy.