“The sewer is backing up into my house…”
If this has happened to you, you are not alone. Fortunately,
there is a path to reclaiming your home and your peace of mind.
It is called the Oklahoma Governmental Tort Claims Act. 1 The “GTCA” was created by, you guessed it, the Oklahoma government in order to “(1) to promote prompt investigations, (2) to provide early opportunity for correction of dangerous conditions, (3) to promote speedy and amicable settlements of claims and (4) to permit the governmental entity to prepare for fiscal consequences.” Sounds good, right?
As we all know, dealing with any government comes with obstacles. The GTCA is no different, but Buxton Law Group has been navigating through these hurdles on behalf of our clients for over a decade. This article explains some of the ways a municipality can prevent their sewer system from backing up and flooding homes and businesses before a problem arises. This should not serve as legal advice, but as a general guide for sewer backup victims. For more in-depth information or for a case review, contact our office or send an email to firstname.lastname@example.org.
STEP ONE: “The sewer is backing up into my house…”
It may come as a surprise to many, but sewer systems backup and flood homes in the Oklahoma City metro area on a daily basis. You come home, or you wake up to a foul stench hitting you in the face. There is what appears to be water on the bathroom floors, soaking through walls and down halls into carpets and furniture. Sludge covers what used to be a comfortable home and you as the homeowner have no idea how to stop it. Unfortunately, you are at the mercy of your municipality’s sewer department to stop and prevent sewer backups from occurring. They (allegedly) do that with the money you pay them every month to use the sanitary sewer system. When they don’t keep up their end of the bargain, its more than gross.
51 O.S. §§ 151 et al.
Calvert v. Tulsa Pub. Schools, Indep. Sch. Dist. No. 1 of Tulsa County, 1996 OK 106, ¶ 19.
A few people you might have thought to call are: (1) city hall or the emergency utility phone number; (2) your insurance company; (3) a plumber; (4) remediation companies. These are all great starts. City hall might be able to dispatch an on-call employee to come and remove the clog from the sewer system and help it flow again. They might even tell you to come down to fill out a Tort Claim. Your insurance may send out an adjustor to look and determine if coverage exists. But if you don’t have a sewer flood endorsement on the policy, it might not be covered. A plumber can confirm that the clog is on the city’s line and not your private line. Remediation companies can come give an estimate on repairs. None of this will get fix your house.
The Tort Claim you were told about (if you were so lucky) is the document that starts a GTCA claim for a sewer backup. There is no way around it, and the city or their insurance company will not even consider a claim unless it is filled out and turned in to the clerk for the municipality or utility authority. This is the “fun” part…
The Notice of Tort Claim
A Notice of Tort Claim is the exclusive remedy allowed by a government when it’s or its employees’ negligence cause harms and losses to a citizen. 3 Compliance with the GTCA is a prerequisite to the state’s consent to be sued. 4 What this means is, without a sufficient Notice of Tort Claim, the law does not allow the city or their insurer to pay your claims. There is a lot to unpack regarding what has to be included in a Notice of Tort Claim to ensure it is sufficient, timely and encompasses all of the claims. Here’s the short version:
A Notice of Tort Claim has to be filed within one (1) year of the date of loss(the sewer backup). 5 The Notice has to include at minimum the date, time, place and circumstances of the claim, the identity of the agency or agencies involved, the amount of compensation demanded, your name, address and telephone number, and the name, address and telephone number of any agent authorized to settle the claim. 6 Sometimes, a city employee will give you a form to fill out that asks for this information.
Tuffy’s Inc v. City of Oklahoma City, 2009 OK 4, ¶ 7.
Shanbour v. Hollingsworth, 1996 OK 67.
51 O.S. § 156(B)
51 O.S. § 156(E)
Once filed, the city and their insurance company have ninety (90) days to respond to your claim. 7 No lawsuit or legal action can be taken during this period. 8 If they don’t respond within the ninety-day time period, it is deemed denied. 9 After denial, a lawsuit must be filed within one hundred eighty (180) days. 10 This is the
On top of all of this, you must make known in the Notice of Tort Claim what legal claims and legal remedies you are pursuing. Is there property damage? Check a box. Is there personal injury? Check a box. But what is a “personal injury” and how does that play into sewer backup claims? It all boils down to the city’s attempt to protect their money. The law was written by the government, remember? With that comes damage caps, i.e. the law will not allow a government to pay more than a specific amount, even if it should. In the context of legal claims, it breaks down where the government could pay at maximum $25,000.00 for property damage. 11 That whopping remediation estimate you got could be twice that amount. But “personal injury” is another story.
A nuisance claim does not seek compensation for property damages. It is a cause of action for “annoyance, inconvenience and discomfort.” 12 It encompasses the odor of raw sewage in your home, the fear of it happening again, the fear of your property value being destroyed, and basically any other physical or emotional damage that could be caused by a sewer backup. Unlike the property damage cap, nuisance claims are capped at $125,000.00 per person (or $175,000.00 per person in large cities). Per person. What this means, when calculating the damage cap on a claim after a sewer backup, is that a single resident in a small town can obtain up to $150,000.00 for a sewer backup ($25,000.00 for the property, $125,000.00 for the nuisance). Add a few more people in the house, like your spouse or children, and the cap increases by $125,000.00 per person. Obviously, this is the maximum amount, which the city or their insurer will probably never volunteer to pay without a jury telling them to do so. However, it is good leverage and could help in a favorable resolution without a jury trial. But, ONLY if the nuisance claim (and each claimant) is included in the Notice of Tort Claim.
8 51 O.S. § 157
11 51 O.S. § 154
12 Truelock v. City of Del City, 1998 OK 64, ¶ 14
Notice of Tort Claim is Sufficient, Now What?
If the Notice of Tort Claim includes all of your causes of action, and identifies every single claimant, and demands the full amount of damages under the GTCA damages cap structure, there is not much left to do. That is, if you want to wait around for ninety days without hearing from the city or their insurer and go file a lawsuit on day ninety-one. For most, this is the harsh reality of a GTCA claim. Why? If you wait around to hire legal counsel to look at your case, there is a good chance that the short GTCA deadlines could have already been passed, rendering you without any legal recourse at all. Or, there might have been an error with your Notice of Tort Claim that you did not foresee, and now the whole thing has to be submitted all over again, if there is even time to do so. This is not to say that the city or their insurance company is hoping you don’t know the law and allow this to happen, but…
For those who follow the GTCA to the letter, and have a municipality or municipal insurance company on the other side that actually wants do the right thing, there could be an offer relayed to you in an attempt to settle the claim. More than likely, however, you’ll get a denial letter with language like: “Oklahoma law has consistently held that a municipality is not an insurer of its sanitary sewer system. This means that a municipality is not automatically liable for damages to property which result from a sewage backup. A municipality may be liable only if it had prior notice of a defect or problem in the sewer line and failed to take appropriate remedial action within a reasonable time before the damage occurred.”
(We see this exact paragraph a lot). With this denial, there is only one thing to do. Hire an attorney and file a lawsuit. The GTCA allows you to file a lawsuit after the ninety-day period has expired without a denial. However, if you are denied two weeks after your Notice of Tort Claim is filed, the rest of that ninety-day period dissolves. Then, you have 180 days from the date of denial to file a lawsuit. As mentioned earlier, you cannot make claims in a lawsuit that are not included in the Notice of Tort Claim. Negligence (property damage), Nuisance (personal injury), Trespass, etc. all have to be plead in the Notice of Tort Claim in order to survive the city lawyer’s motion to dismiss your claims.
ALL of this is the first step on the long road to justice for sewer backup victims. Notice of Tort Claims are extremely important documents that should at minimum be reviewed by an attorney before filing. At Buxton Law Group, we take the guesswork out of it. Our Notice of Tort Claim, prepared by our attorneys as part of our service for clients, goes above and beyond the requirements of the GTCA and includes everything our clients need to obtain the compensation they deserve. When going down the list of who to call after a sewer backup, put us on the list.
For more information, check out some of our other articles on sewer backup
litigation or give us a call. We’re here to help.