If the water levels on Earth rose to the extent that Mount Everest’s Base camp was damaged by water inundation, could the Sherpa’s make a claim on their insurance policies? In many insurance companies minds the answer is no as this is a “flood” as defined.

The definition of “flood“ is almost always:

“Flood means the covering of normally dry land by water that has escaped or been released from the normal confines of:

(a) Any lake, or any river, creek or other natural watercourse, whether or not altered or modified; or

(b) Any reservoir, canal, or dam.”

The fight around these water damage claims often relates to the words “water that has escaped…from the normal confines of…”, being a phrase that is ambiguous and open to interpretation. In insurance cases, the wording is crucial and people challenging an insurers decision should focus on the words “escaped…from”.

The insurance companies often state that the water had come from a particular lake, river, creek or other natural watercourse (“river or creek”). They often fail to state how the water arrived at the subject premises (ie direction of waterflow). The direction of waterflow is often evident from the aftermath of the water inundation, such as pushed over signs, fences, moved vehicles or other objects. If the water came “from” the opposite direction than the river or creek that is often strong evidence that it was not a flood.

Even if the water had come from the direction of the river or creek, one must have regard to the distance from the river or creek the subject premises was and the topography between. What if the subject premises is 50 kilometres from the river or creek? Some might suggest that the water could not have “escapedfrom the normal confines” of the river or creek at such distances. Others might disagree depending upon the topography.

What if the subject premises is 50 metres higher than the river or creek? Again, many would suggest that the water damage could not have “escapedfrom the normal confines” of a river or creek (given the levels at which it has risen). Others might disagree as some of the waters may have been from the river or creek.

Identifying whether a “flood” has occurred is not easy and is almost always arguable.

There comes a point at which waters entering a subject premises could not have “escapedfrom the normal confines” of any river or creek. The point at which this occurs will be independent in each example upon the distance from the river or creek and the topography between the subject premises and river or creek. Further, clear waters in the subject premises may evidence that the waters had not “escapedfrom the normal confines” of the river or creek particularly if the river or creek has large quantities of sediment.

The reality of water inundation is that there are generally flooding events occurring in the surrounding regions at the time that water enters a persons premises. Rivers and Creeks are full and waters are not draining away. That does not mean a flood has entered your property. It all depends upon the facts leading to the water inundation.

If you have any further questions, please contact Lachlan Main, a Principal at Main Lawyers to discuss your flood matter further.

Related Tag: Flood Lawyer

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