Dear Customer, thank you for choosing Just Answer, I am sorry to hear of this extremely unfortunate matter, and would like to assist you in describing your legal remedies here.
First, I would advise you to continue to pursue your insurance coverage in this matter. You can continue to appeal the insurance coverage both with your carrier and if necessary with the Department of insurance. Ultimately, you do have a right to pursue your insurance claim in state court with what is called a "bad faith" action, but I do hope that this is not necessary.
Second, the claim against the developer would be one for trespass. Allowing water to come into your property that is not in the natural waterway is a form of trespass and the developer is responsible for the damages. As the amount of damages is over $50,000.00 you will need to bring this claim in general civil court (this has a little more complex procedure than small claims court, but you can pursue it there without an attorney if you are absolutely unable to afford one, an attorney is highly recommended). You can get damages in excess of the actual damages in a trespass case as this is an intentional tort.
I did not have flood coverage, because I am not in a flood zone. My agent verified with 3 different agents, that even if I had flood insurance, it would not have been covered. It was considered surface water - nothing overflowed and no other homes were effected-which would classify it a flood.
I am not saying the insurance carrier will suddenly change its mind, I am saying that you probably have a strong claim (I have not read your policy - different insurance policies have different ranges in coverage, but this type of damage is generally covered).
I was told that all the contents of the basement (if I go to court) would not be reimbursed at replacment cost, that it would be as "used". I had a new furnace, hot water tank, washer/dryer that were all less than 2 years old. I also had all my seasonal decorations and clothing, and was told that I need to price them as for a price they would go for at a "garage sale"!
Continuing to appeal your adverse decision will give you the best opportunity to pursue this claim (asking an attorney to assist you will also help as they can review your policy and help word your appeal so that you get the maximum out of your argument, I know that customers do not come here to be told to go to an attorney, but you are in a difficult position and fighting an insurance company is a tough place to be, you can benefit from counsel, but you do not absolutely have to have a lawyer).
As far as the replacement cost, garage sale prices seems low. I would have to defer to an insurance specialist for the cost of replacement value, but generally they are correct, even though the units are less than 2 years old, they would be valued as "used" and you would be getting less than you paid for them (even though you would have to pay full cost to replace them in reality).
The claim against the developer has a different story though - that claim would allow for a higher reimbursement value.
While your property still may be valued as "used" you can argue before a court that the value is far higher than what any insurance carrier would value it as - plus given the intentional tort value of trespass, you stand a reasonable chance of regaining far more. (I can never guarantee the outcome of any litigation, but the opportunity for a fuller recovery due to this conduct is there).
Is this trespass by the developer recognized in all states? His argument is that he did nothing to change the flow pattern, which in essence he didn't. What he did do, was remove hundreds of trees, ground covering and vegetation that slowed water and absorbed it. I lived in this house for 20 years and never had this happen. Two weeks after he cleared trees, my house collapsed due to high levels of rushing water.
Yes, trespass is considered in all 50 states. Removal of vegetation to create changes in flow is considered a change to the natural waterway.
(The developer should have insurance to cover this as well).
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