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Dwayne B.
Dwayne B., Attorney
Category: Legal
Satisfied Customers: 33933
Experience:  Began practicing law in 1992
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I had water heater damage that was covered by Sears master

Customer Question

I had water heater damage that was covered by Sears master protection agreement...the Sears guy came to do " an annual preventive maintenance" and he does did a visual check...then in Spring 2015 the water heater leaked and has caused thousands of damages to the house...the water heater location is in the attic...can i sue Sears for 1500?
Submitted: 2 years ago.
Category: Legal
Expert:  Dwayne B. replied 2 years ago.
Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification. Also, I can only answer the questions you specifically ask and based on the facts that you give so please be sure that you ask the questions you want to ask and provide all necessary facts. Under what theory do you think Sears is liable?
Customer: replied 2 years ago.
Well...I was hoping with the Sears Master Protection Agreement, that the Sears technician would have a done a thorough check on the water heater when he came in Fall 2014. However, he did a cursory visual inspection. If he had checked the water heater, perhaps we could have averted this?Also, I don't have any records of purchase for this Water Heater. Sears Property damage claim was closed, saying its the responsibility of the manufacturer(State Water Heaters).
Expert:  Dwayne B. replied 2 years ago.
What is the $1500 amount? How did you arrive at that figure?
Customer: replied 2 years ago.
Probably major underestimate...but that is probably my deductible for home owners insurance
Expert:  Dwayne B. replied 2 years ago.
Typically you have to sue for all of the damage and then the insurance company will subrogate against you for the amount they paid, most courts wont' just let you sue for the deductible because that gets into the subject of insurance which isn't allowed. However, leaving that portion out, in order to sue Sears you are going to have to hire an expert who is going to be able to link the water heater inspection to the later failure. They will have to be able to testify that whatever caused the failure was 1) visible at the time of the inspection and 2) should have been caught in the inspection. If you don't have an expert then Sears will just use on e of their's to testify in a Motion to Dismiss or a Motion for Summary Judgment that they inspected the system and that nothing showed as being about to fail and therefore whatever failed must have either been a sudden failure not subject to inspection or else it was something that couldn't have been inspected such as an internal component. Since you would be the one suing the burden of proof would be on you to prove that Sears failed in their duty, you can't just rely on the argument that since the water heater failed it must have been inadequately inspected.