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Flood Damage from Hurricane Harvey

We Are Arnold & Itkin. We Are Texans. We Are Going to Fight to Make This Right.

Reports show that 80 percent of the homeowners affected by Hurricane Harvey don’t have flood insurance, or have so little insurance that their costs won’t be covered. Part of the problem is that Harvey was an unprecedented storm—around 40 percent of flooded homes were in low-risk or moderate-risk flooding zones. Many of these “low-risk” homes have been flooded before; however, local emergency management has not updated their models to reflect that risk of flooding.

For homeowners with little to no flood insurance, private insurers will only cover “windstorm damage,” or damage exclusively resulting from high winds. However, the fact is that if you have flood insurance, you have two claims on your hands: a windstorm damage claim and a flooding claim. Each claim will need to go to a different adjuster. After a hurricane, how does an insurance adjuster distinguish between what was caused by flooding and what was caused by high winds?

Flooding damage is any damage that results from rising water levels. So, if the first story of your home was contaminated with mold and sewage due to standing floodwater, that would be considered flooding damage. The mold, sewage, and other remediation efforts wouldn’t be covered under your private policy.

Anti-Concurrent Causation Clauses

Additionally, Texas law enforces the use of “anti-concurrent causation” clauses. ACC clauses are part of your insurance policy that exclude coverage in situations where covered events (high winds) and excluded events (flooding) happened simultaneously or in sequence to cause your damages. In other words, if flooding and high winds destroyed your home, the insurance company could deny your claim simply because flooding also contributed to your losses. Without flood insurance, the only way your insurance company will cover the repair cost is if you carefully document the damage and only include losses that were caused by high winds. Anything that was caused or made worse by flooding would need to be excluded from your claim.

The High Cost of Flood Damage

In the greater Houston area, the median home size is 1,900 square feet—and some areas of South Texas saw between 36 and 48 inches of flooding. The nationwide average value of a person’s personal belongings is around $25,000.

Crunching those numbers, the average household’s losses after Harvey will be astronomical—even without taking into account loss of employment, work hours, personal vehicles, and more. Households with more extensive damage from runoff (which is powerful enough to knock a house off its foundation) could be looking at additional tens of thousands of dollars in losses. Contamination from Superfund sites around Houston add to the bill, making repairs not only more costly, but life-threatening if not done quickly. These are costs that insurance companies are aware of—but are unwilling to provide for voluntarily.

Another Option: Inverse Condemnation

Let’s circle back to the outdated emergency management models. Harris County has dams and reservoirs built throughout the region to mitigate flooding, with major ones in west Houston: Addicks and Barker Reservoir, both of which empty out into Buffalo Bayou. Unfortunately, unregulated housing growth throughout the 20th century meant houses were built inside of Addicks, Barker, and Buffalo Bayou areas—where flooding would not only be severe, but long-lasting. Both Addicks and Barker Reservoirs are operated and maintained by the U.S. Army Corps of Engineers, and as such are the responsibility of the U.S. Government.

(Former Texas representatives are calling for investigations into the San Jacinto River Authority for similar negligence regarding "controlled dam releases.")

“Inverse condemnation” is the “taking” of private property for public use that (by design) damages the private property or decreases its value. If the Corps designed, maintained, and intentionally released massive amounts of water from these reservoirs in areas it knew were subject to flooding, and did nothing to mitigate the flooding risk, then homeowners in those areas may be eligible to sue. Shortly after Hurricane Harvey made landfall, reporters uncovered a 1996 proposal that would have prevented much of the $20 billion in damages done by Harvey—a proposal that the county ignored. As a Houston law firm, we stand with our friends and neighbors against the predatory practices that are destroying our communities and slowing down our recovery.

To find out if your home qualifies you for an inverse condemnation case, call (888) 400-2101.