David and Suzanne McKenna own their home on Maybell Way inPalo Alto, Calif. Their residence suffered serious damage as the result of twobackups of the city sewer serving their home.
After the first backup, their homeowner’s insurance companypaid to install a new lateral sewer pipe from the house to the sewer located inthe street.
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But about a month later, the sewer again backed up into theMcKenna home. This time the insurance company hired Spectrum Leak Locators toinvestigate the cause of the second backup. Their video inspection found thereplaced lateral pipe was clear of debris and in perfect condition.
Spectrum discovered tree roots at the city’s “wye”joint connecting with the McKenna’s new lateral pipe to the city’s main sewer.The video inspection revealed toilet paper and effluent on the tree roots inthe sewer main pipe, which was half-filled with standing water.
After paying the McKenna’s second homeowner’s insuranceclaim, the insurance company filed a lawsuit as subrogee against the city fordamages from the second backup. The insurer argued the City of Palo Alto wasliable for “inverse condemnation” damages, meaning the city’s actiontook the use of private property without payment.
But the city submitted evidence it has a maintenanceprogram, including hydroflush of each main sewer line every two years. TheMaybell Way sewer had been hydroflushed 18 months before these sewer backups.The city also noted no other homes on Maybell Way suffered sewer backupdamages.
If you were the judge would you require the city to payinverse condemnation damages for the second sewer backup?
The judge said yes!
There is no dispute as to the three elements of inversecondemnation damages: the McKenna property was taken or damaged, the damage wascaused by the sewer backup, and the city’s sanitary sewer system is a publicproject, the judge explained. The only missing element was proximate causation,he emphasized.
At the trial, evidence was presented as to three possiblecauses, he continued. They were (a) tree roots in the main sewer line, (b) thesewer main had an inadequate slope to carry sewage away from the homes, and/or(c) there was standing water in the sewer line.
No matter what caused the sewer backup damage to the McKennahome, the public sewer failed to function as it was intended, the judge ruled.”The blockage occurred on city land and in piping strictly under thecontrol of the city?in this case there was a substantial cause-and-effectrelationship between factors entirely within the control of the city,” henoted. Therefore, there is no need to distinguish among them to determine the”how and why” the blockage occurred; the city is therefore liable forinverse condemnation damages, he concluded.
Based on the 2006 California Court of Appeal decision in CaliforniaState Automobile Association Inter-Insurance Bureau v. City of Palo Alto,41 Cal.Rptr.3d 503.
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Copyright 2006 Inman News