Over the last two weeks, Southern California was bombarded with short but very heavy rainstorms. It seems that the rains have come early this year and that we may be in for another uncharacteristically rainy season. Even more rain is anticipated for this coming weekend. In December 2010, Southern California was inundated with rain for weeks on end. A plethora of wind driven water damage claims arose from the 2010 rain, as well as claims for damage caused by falling trees and branches.
Last year, many insureds found their homes and communities were unprepared for the damage that the rains would cause. Trees were downed by the heavy rains and soft soil. The winds caused roof damage in many communities, and insureds found leaks in their ceilings and walls for the first time. Some homes were even flooded by the heavy downpours.
Over the last five months, I’ve received numerous calls and consulted with home and condominium owners asking if their water damage claims arising from the December 2010 storms were viable. Many insureds’ water damage claims were denied outright by their insurance company.
Water damage claims can be difficult, depending on the circumstances. Each instance and insured may have a unique situation. However, the one thing that may not be unique for each potential claim is that in California, the insurance company may have put a provision in their policies requiring all lawsuits to be filed within one year from the date of incident or date of loss discovery.
In Prudential-LMI Com. Insurance v. Superior Court (Lundberg) (1990) 51 Cal. 3d 674 [274 Cal. Rptr. 387, 798 P.2d 1230], the California Courts have upheld that "the one-year suit provision begins to run on the date of inception of the loss." Specifically, the Court defined the date of loss "as that point in time when appreciable damage occurs and is or should be known to the insured, such that a reasonable insured would be aware that his notification duty under the policy has been triggered." Further, the Court defined tolling, indicating that the "limitation period should be equitably tolled from the time the insured files a timely notice, pursuant to policy notice provisions, to the time the insurer formally denies the claim in writing."
As we approach December 2011, many Southern Californian insureds will find that their rights will be forfeited if they do not settle their claims or file suit before the one year anniversary of the date of loss. Although California law allows for tolling of the statute during the time a claims is adjusted, it is safest to preserve a claim by filing suit before the one year expiration.
