Legal Question in Civil Litigation in Illinois

I live in a condominium. My upstair neighbor had a leaking toilet that damaged my ceiling and drywall. Now I am debating with his insurance company whether they should pay the total cost of repair or only my deductible, in which case I'll have to file claim against my own insurance company.

The by-law of the association says "If, due to the act or neglect of a Unit Owner or of a member of his famliy or household pet or of a guest or Occupant or visitor of such Unit Owner, damage shall be caused to the Common Elements or to a Unit or Units owned by other, or maintenance, repairs or replacements shall be required which would otherwise be at the Common Expense, then such Unit Owner shall pay for such damage and such maintenance, repairs, and replacements as my be determined by the Board, to the extent not covered by insurance."

I had some dispute with his insurance company over the last sentence "to the extent not covered by insurance": The way I am reading it is that the upstair owner needs to pay for all extra charges not covered by HIS insurance. But he and his insurance combined should take care of the total expense of the damage. However, his insurance claims that this sentence suggests that the upstair owner is only responsible for the part not covered by MY insurance, meaning his insurance company only needs to cover my deductible. The dispute is really on what this last word "insurance" stands for: his or my insurance? Any expert can clarify it please?

Further, I live in a state that has now a new condominium act that says whoever caused the damage should pay all the cost. However, the by-law of my condominium has not "adopted" the new act yet. Although I read somewhere that the act overrides the by-law (as quoted above), his insurance company insists that they have to proceed based on the old by-law. It just doesn't sound right to me that a law has to be adopted to be in effect. Anyone can clarify this as well?

Thanks!


Asked on 10/24/12, 7:00 pm

1 Answer from Attorneys
Stephen Messutta

The upstairs owner is responsible to you IF he was negligent. Your facts show no evidence of negligence. The condo insurance MAY be liable if it was a failure of the common elements or limited common elements. The Act supersedes existing condominium documents regardless of whether the association has enacted an amendment bringing the declaration up to date. Your own insurance may cover this loss (less deductible) and then your insurer would take it under "subrogation" against the upstairs owner. Talk to your own agent about coverage under your policy for this kind of situation.

Read more
Answered on 10/25/12, 6:43 am


Related Questions & Answers

More General Civil Litigation questions and answers in Illinois