AboutJay K. Williams, AAI, AIP, CIC, CRM Expertise I can answer questions relating to the following coverages: personal auto; homeowners; commercial auto; commercial liability; commercial property; business income and all other property and casualty coverages.
Experience I have been in the insurance industry in Florida since 1979. I am currently the president of a Florida domestic insurance company subsidiary. I've taught continuing education classes in Florida and across the country. I am quite familiar with all coverages including Florida Condominium master policies and unit owner policies. I also specialize in agent professional liability. I have been a professional educator since 2001.
Organizations I am a member of the Florida Associaion of Insurance Agents, the state affiliate of the Independent Insurance Agents and Brokers of America.
Education/Credentials I currently carry the following professional designations:
Accredited Advisor in Insurance (AAI)
Associate in Insurance Production (AIP)
Certified Insurance Counselor (CIC)
Certified Risk Manager (CRM)
Question QUESTION: I recently had a leak in my condo unit in Dallas, TX, which is downstairs, but it originated from the toilet of my upstairs neighbor. I contacted the owner and had someone come out to look at both units. The contractor initially came on Sunday to see my damage and pinpoint the problem. Of course, he noticed the stains from the unit above in the deck. On Monday, he came back to look at the toilet upstairs. The owner was present and agreed to have him come back Tuesday to repair it so my unit could be repaired shortly thereafter. I actually witnessed that agreement, and the owner didn't ask for someone else or a second quote. He accepted. The contractor came back Tuesday, but a friend of the owner wouldn't let him complete the work until he could talk to the owner, who was out of town. Needless to say, the work wasn't done. The owner is thinking the HOA is liable, but I told him our property management company won't pay for interior problems. We had a similiar issues with the same owner a few months ago where he was responsible. I tried calling to talk to the owner, but he has not yet returned my call from 2:30 pm Tuesday afternoon. My insurance agent says he will only be liable for costs to repair my unit when he becomes negligent. At what point is he negligent, and what is the Texas law regarding homeowner negligence? IMAGE: Beginning of leak
ANSWER: Hey Michael,
That's quite an incredible picture!
Since I'm not a lawyer, I cannot speak to how Texas law reads or applies regarding homeowner negligence. From an insurance perspective, negligence is defined as the failure to do what a prudent person would do under similar circumstances.
If the unit owner above you knew there was a problem but failed to repair it, then, in my "insurance" opinion, he could be held negligent. Ultimately, negligence is determined by courts.
In your situation, much may depend on how Texas condominium law reads. Condo laws vary widely from state to state. You agent is correct, but, as you have questioned, where does negligence begin?
Another factor to take into consideration is how the condo documents read regarding insurance-related claims/responsibility.
At this point, my first recommendation is to get your insurance carrier started on the repairs. Your adjuster should be familiar with laws affecting such claims and how they are handled. Also, if you agent is not sure, he/she can call the Independent Insurance Agents of Texas if they are members and they should be able to advise.
Short of that, the next step might be to contact an attorney.
Let me know if you have additional questions.
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QUESTION: I thought about getting my insurance to start working on it. But the quote I got is not quite as much as my deductible, which is $500. Plus, what good does it do to repair my unit if he hasn't repaired his toilet upstairs...the cause of the leak in the first place?
ANSWER: I would agree. Now that he knows for sure, everything from this point on should definitely be considered negligence.
Have you approached the Condo Board about it? That might be your next course of action.
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QUESTION: I'm one of the directors on the Board.
I have yet to receive a returned call from the upstairs owner and was just about to call him back. I got a call from a repair man this afternoon who said the owner wanted him to come look at my damage. It confused me. I suggested in a voice mail to the other owner that he should talk to our property manager and get another estimate if he likes. There's nothing forcing him to pay for my repairs unless he continues to be negligent. I was just going to suggest to him to fix his toilet now at his own expense and I'd repair my own damage at my own. Now I have this second contractor calling me out of the blue. I'm not interested in paying for another service call, and secondly, the owner didn't even communicate anything to me about him. I'm not even sure he was the one that called him out. I haven't approved for the second opinion to come out yet. I'm trying to figure out what to do next. Suggestions?
Answer If it doesn't cost anything, I'd let him come look at it. He's just going to verify what you've already told the unit owner above you. If there is a charge, then the other unit owner should pay it, after all, he's the one that wants another look. Maybe his intention is to pay for your repairs. I would find that out before I let someone else in.
If you are going to pay for your own repairs, then there is no need for a "second opinion" from another contract. He just needs to get his plumbing repairs made so there will not be any further issues.
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