Water damage: my insurer refuses to cover it — what can I do?

The principle: your fault is not enough to deny

The insurer must compensate damage caused by superior force or by the insured's fault, unless an exclusion is expressly and restrictively stipulated in the contract. It is never bound to compensate damage resulting from the insured's intentional fault (article 2464).

“You should have noticed the leak sooner” is therefore not, in itself, a ground for denial. The insurer must point to a written exclusion that covers the situation precisely.

The usual exclusions

Home policies often contain exclusions covering, among others, gradual or continuous seepage, sewer backup, surface water or freezing; some coverage is available only by endorsement. Hence the importance of reading your own policy, with its endorsements, rather than assuming.

The insurer cannot rely on conditions or representations that are not set out in writing in the contract (article 2403).

Wear and inherent defect

The insurer is not bound to compensate damage resulting from wastage, diminution or loss of the property caused by its inherent defect or its nature (article 2465). That is often the ground relied on when a worn pipe gives way.

The distinction between the worn item itself and the damage it caused elsewhere is frequently at the heart of the dispute — and it depends on the exact wording of the policy.

Who must prove what

It is up to you to show that the loss falls within the coverage; that follows from the rule that whoever enforces a right proves the facts supporting it. But an insurer claiming that an exclusion defeats your right must prove the facts it relies on (article 2803).

Interpretation in your favour

An insurance policy is generally a contract of adhesion: its essential terms were imposed on you and could not be freely negotiated (article 1379). In case of doubt, such a contract is interpreted in favour of the adhering party (article 1432).

Moreover, in a contract of adhesion, a clause that is illegible or incomprehensible to a reasonable person is null if you suffer injury from it, unless the insurer proves it gave you an adequate explanation (article 1436).

Act quickly

Report the loss as soon as you become aware of it (article 2470). Photograph and film before any clean-up, keep the defective parts, and get the plumber's opinion on the cause in writing. The insurer must pay within 60 days of receiving the notice of loss or the information it requested (article 2473).