Reports on the health, environmental and economic development impacts of aging water and sewer infrastructure abound, but the liability aspect deserves equal attention. According to the state Tort Claims Act, if a water or sewer system defect causes property damage and the service provider had−or should have had−notice of the defect, the provider is liable for damages.
For the last decade, the South Carolina Municipal Insurance and Risk Financing Fund has seen an increase in the cost to settle sewer backup claims. The increasing costs are attributed to members who unintentionally create liabilities by failing to correct known issues or by lacking adequate inspection and maintenance programs.
Since 2007, SCMIRF has incurred costs for 38 sewer backup events. Although the number of claims represents a small portion of all general liability claims, they account for an average of 12.6 percent of the program's yearly general liability claims costs.
Beginning this year, SCMIRF is offering grants to help public works departments purchase equipment designed to prevent or reduce sewer backup claims. Sewer cameras, tractor transporters that carry cameras through the line, smoke fans, and acoustic pipe inspectors are eligible for reimbursement under the grant. SCMIRF will pay a 50 percent match, up to $2,000 yearly.
SCMIRF also developed a Sewer Backup Response Kit for its members to provide practical, straightforward information to help public works employees respond promptly and appropriately to sewer backups.
Sample guidelines for responding to a sewer backup
Complete regular inspection and maintenance reports. Address any noted issues as soon as possible because these issues constitute "notice" of a defect.
Avoid removing wastewater from the customer's property. Instruct him to hire a professional cleaning service. Provide a list of professionals, but do not endorse one. If you must assist with cleanup or extraction, have the claimant sign a nonwaiver of defenses agreement, stating that your assistance does not constitute admission of responsibility.
Report the incident to your insurer immediately. Have trained staff complete a detailed incident report with the claimant's contact information. Do not have the claimant complete or sign the incident report.
Do not discuss the cause of the backup with the claimant or his cleanup service. If the claimant asks, refer him to your insurer who will investigate and determine responsibility.
To assist your insurer in determining liability and preparing a defense against litigation,
a. Take photographs or videos of the spill.
b. Provide copies of your complaint log and information regarding prior backups at this or nearby locations to your insurer's claims department.
c. Document the cause of the spill, if known
d. Correct any system deficiencies to prevent additional incidents
SCMIRF is a service of the Municipal Association and a self-insured property and liability program with more than 100 local government members in the state.