The summer of 2021 in Northern Arizona has been associated with frequent monsoons. The National Weather Service has issued multiple flash flood warnings throughout the month of July. It has also noted that, since the Museum Fire that took place in July and August of 2019, there is an increased likelihood of flooding adjacent to the Museum Fire “burn scar.” Portions of East Flagstaff (including Sunnyside, Mt. Elden Estates, Paradise Hills, and Grandview) are at risk of flooding as a result of the Museum Fire and recent rainfall has in fact caused flood and related damage in these neighborhoods. Owners in these neighborhoods understandably want to know if they have recourse for their damages either from their own insurance coverage or from third parties or their insurance coverage. This article provides a brief overview of issues to consider when assessing possible recourse for this flood damage.
Owners should first look to any flood insurance coverage they purchased for their home. Flood insurance is an optional coverage available to most homeowners and is intended to provide homeowners with a source of financial recovery for some flood-related damages. If an owner discovers she did not purchase flood insurance, that owner should consider whether she received appropriate information and advice about such coverage. Did the seller disclose the risk of flooding? Did any real estate and insurance agents advise the owner/buyer of the availability of flood insurance?
For those homeowners who did not purchase flood insurance, these owners should still investigate the possibility of coverage through their standard homeowners’ policies, although most such policies will contain exclusions for most flood-related damage if the homeowner did not purchase optional flood insurance.
If no flood or other homeowners’ insurance coverage is available, homeowners should next consider any third parties who may be responsible for some or all of the flood damage. Consider whether landscaping or other contractors who worked on an owner’s home knew (or whether they should have known) of the risk of flood damage, and whether these contractors took appropriate steps to protect against such flood damage.
Also, consider whether FEMA should have designated a property as a “Special Flood Hazard Area” requiring purchase of flood insurance to obtain a mortgage from a lender that is federally-backed. Consider whether there is a homeowners association that had a responsibility to design, construct or maintain a common area impacting drainage, and whether that common area caused or exacerbated any flood damage. Also consider whether a landlord or seller of a property properly disclosed the risk of flooding or prior instances where the property has flooded. In purchasing homeowner’s insurance, did an insurance agent advise of the availability of flood insurance and whether homeowner’s insurance covered damages caused by flooding? Did a real estate agent advise of flooding risk? Purchase contracts for properties often require the buyer to determine flood hazard designations during the inspection period, placing the impetus on them to obtain flood insurance if desired. Property owners should review the purchase contract associated with their property for similar provisions.
Property owners should, to the extent possible, act timely after flooding impacts their property. All insurance policies require timely notice of any claim. Failure to comply with such a requirement may limit, if not outright prevent, an insured’s ability to recover from an insurance company even if a property owner otherwise has flood insurance. Insurance contracts also may require an insured to take additional steps in anticipation of, or following, filing a claim. Property owners with flood insurance should review their policy to ensure compliance.
In the event another party is liable for damages flooding caused, the question becomes, do other legal principles prevent recovery? Homeowners often question whether a city, county, or State could have taken additional steps to prevent flood damages and what its liability is if it failed to take preventative measures. For example, the Coconino County Flood Control District is responsible for working directly with FEMA to determine areas at risk for flooding, minimizing the impact of floods, and supporting the National Flood Insurance Program. Cities, counties, and the State of Arizona are protected by what is termed “absolute immunity” and “qualified immunity.” These public entities may not be liable for determining whether to seek or provide resources for constructing or maintaining facilities or determining how to spend existing resources for facilities. As relating to claims against public entities, then, the question is not just whether a city, county, or the State caused flooding, but how, and they are immune from liability? Parties with claims against cities, counties, or the State must provide a notice of claim, including specific details of the claim as set forth by Arizona law, within 180 days after the cause of action accrues. When a cause of action accrues is another question that is often disputed. It frequently requires assessing, in this case, when a property owner should have reasonably discovered another party was at fault for causing flood damages. As such, recovery may become more difficult, if not impossible, if property owners do not take proper, timely steps to preserve their claims.
Another important question is whether property owners took steps to reduce their damages. If a property owner could have reasonably minimized the damage flooding caused to their land (but failed to do so), the property owner may not be able to recover the complete cost of damages. Property owners should also assess whether any party ever provided them notice that flooding could have been an issue. In some instances, a party may claim the property owner knew or should have known flooding was likely and should have acted in anticipation their property would one day flood. Did a property owner know their land was particularly subject to flooding? What was the likelihood of that land flooding? Has the property previously suffered from flooding? What were the costs of employing preventative measures to reduce damages flooding would cause? These questions, even though they focus on the property owner, may be relevant where a property owner seeks financial recovery from another party due to flooding damages and may even reduce the amount of damages a party may recover.
Property owners that have received damages from flooding should act swiftly and reduce damages when feasible. This is especially true if a property owner seeks to recover financial damages associated with flooding, as doing so will prevent additional barriers to receiving compensation for potentially expensive repairs.
For additional information or to schedule an appointment with an attorney, visit Aspey Watkins & Diesel’s website at www.awdlaw.com or call (928) 774-1478. Aspey Watkins & Diesel’s Flagstaff office is located at 123 N. San Francisco Street on the third floor in the AWD Building next to Heritage Square.
Jason Bliss is a partner at Aspey Watkins & Diesel where he litigates construction and personal injury disputes. Michael Victor is an associate at Aspey Watkins & Diesel where he handles property and contract disputes as well as criminal law matters.