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Failure To Disclose: Who Is Liable For Damages?

By September 27, 2017July 9th, 2018No Comments

Many property owners understand the frustration of being held liable for something you didn’t even know existed. Did you know that the burden is not always 100% on you?

Wheeler, DiUlio, & Barnabei represented a client in a recent case involving damage to an underground oil tank. When the client purchased the property, the presence of this tank was not disclosed to them. Naturally, they proceeded with work on the land under the assumption that there was nothing to work around. Unfortunately, the hidden tank was discovered and that is when things started getting expensive.

With such a dangerous pollutant leaking into the ground, the city required the homeowners to clean up the spill. Our client filed a claim with their insurance company and were promptly denied coverage. Their policy had language excluding coverage for pollutant leaks and the insurer argued that this included the oil leaking from the hidden tank.

You may be thinking the same thing we did: why should the homeowners be responsible for paying for all repairs and cleanup of a spill from a tank they knew absolutely nothing about?

Fortunately, in New Jersey, and other states, there is a provision in your policy covering you when you have a liability to pay for damages. Additionally, if damages occur like this, all prior property owners are held liable and must help pay for damages.

We learned that there were three prior owners of this particular plot of land who could be liable. One of the owners was the city, and because of immunity, they were removed from the list of liable parties. However, two other owners had control of the property in the past, and we notified them, and their insurance companies, of their responsibility to assist in the clean-up of this hazardous spill.

In this instance, Wheeler, DiUlio, & Barnabei reminded the court of two things:

  1. Our clients had no prior knowledge of the existence of this tank due to previous owners’ failure to disclose its presence when our clients purchased their home.
  2. The city was forcing them to perform work on their land (in this case, clean up the oil spill).

These two factors were extremely important when it came time for the court to rule on the case. The Court determined that all prior owners over the past 11 years needed to split the cost of clean-up and repairs. Not only that, but they also ruled that this particular spill was covered under our clients’ insurance policy.

Furthermore, the court ruled that the continuing nature of the oil leak restarted the statute of limitations. In essence, if there is a continuing leak, the statute of limitations would not pass simply because you didn’t know of the damage.

If you have been denied for a claim where the city, state, or other entity is forcing action, forcing you to pay money for a problem you didn’t know about, you may still be covered by your insurance provider. Give us a call and we’ll review your policy and make sure you have the help you need, when you need it.

Click here to contact an attorney at Wheeler, DiUlio, & Barnabei.

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