To establish City of Munford, Public Works Department (hereafter “Department”) policy and procedures pertaining to sewer backups.
Definitions: As used herein, “sewer backup” means any backup of sewage from the City owned and maintained sewer system. “Sewer backup” does not include storm water drainage system backups.
The Department maintains sewer lines, sewer mains, manholes, pump stations and force mains located on City right-of-ways, easements, and City owned property. Maintenance of sewer service lines from the City owned sewer system to a property owner’s structure is the responsibility of the property owner.
The Department expends significant resources to keep the sewer system in operable condition and in a good state of repair. Occasionally, however, forces of nature or conditions develop within the sewer system that may cause sewage to backup into a residence or business which are beyond the Department’s control, and / or for which the City bears no legal responsibility or liability. The Tennessee Governmental Tort Liability Act (Tenn. Code Ann. §29-20-101 et seq.) establishes the parameters for City legal responsibility / liability in such situations and provides in pertinent part as follows:
29-20-204. Removal of immunity for injury from dangerous structures – Exception – Notice required.
(a) Immunity from suit of a governmental entity is removed for any injury caused by the dangerous or defective condition of any public … structure, … or other public improvement owned and controlled by such governmental entity.
(b) Immunity is not removed for latent defective conditions, nor shall this section apply unless constructive and / or actual notice to the governmental entity of such condition be alleged and proved ….
29-20-205. Removal of immunity for injury caused by negligent act or omission of employees – Exceptions – Immunity for year 2000 computer calculation errors. Immunity from suit of all governmental entities is removed for injury proximately caused by a negligent act or omission of any employee within the scope of his employment except if the injury arises out of:
(1) the exercise or performance or the failure to exercise or perform a discretionary function, whether or not the discretion is abused; …
(3) the issuance, denial, suspension or revocation of, or by the failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order or similar authorization;
(4) a failure to make an inspection, or by reason of making an inadequate or negligent inspection of any property ….
Tennesssee state law has made it clear that the City does not and cannot guarantee that its sewers will never back up. Because a sewer is not a closed system, many things put into the sewer can clog the system. Large amounts of grease and disposable diapers are two common items that cause problems. While municipalities can adopt rules prohibiting dumping of these items into the sewer and can try to educate the public about the problems they cause, there is really no way they can absolutely prevent this from happening. Other factors can cause backups as well. For example, tree roots can grow into and obstruct the system and overload it.
In accordance with state law, the City / Department shall not be responsible for, shall not assume any liability for, and shall not pay any sewer service customer’s claim for any damages or costs, direct or indirect, of whatever kind or nature whatsoever, associated in any manner with any sewage backup or blockage onto private property, unless such damages are caused by: (a) a dangerous or defective condition of the City sewer system located on land owned or controlled by the City, to include City right-of-ways and easements, and which such dangerous or defective condition the City / Department had actual or constructive notice of prior to the occurrence of the sewer backup damage(s); or (b) the negligence of any City employee(s) acting within the scope of his employment, except as otherwise provided by law. It shall be the responsibility of the sewer service customer making the claim to submit sufficient and satisfactory evidence as determined by the City Manager, City Attorney and/or the City’s insurance carrier, to substantiate the claim.
The City and its insurance carrier will only accept claims from a customer if that customer has already submitted a claim to his own insurer in accordance with the customer’s homeowner’s policy or commercial property policy. If the customer has no insurance coverage whatsoever on his home or commercial property, then the customer shall sign an affidavit to that effect, attesting to the total absence of such insurance, and provide that affidavit to the City Manager.
The Importance of Homeowners Insurance Coverage for Sewer Backup
Many homeowners insurance policies exclude damage resulting from sewer backups. Thus, homeowners often end up looking to the City to pay their damages when their own homeowner's insurer denies their claim.
Some homeowners insurance companies do provide sewer backup coverage. Therefore, it is possible for homeowners to protect themselves against this risk.
Department customers seeking to make a claim for sewer backup damages will be advised to submit a written claim to the City Manager using claim forms adopted by the City. All claims must be filed within thirty (30) days of the incident / occurrence giving rise to the claim. The City Manager shall investigate the claim and may review same with the Department Manager or his designee, and such others as the City Manager may determine appropriate, and may consult with the City Attorney and the City’s insurance carrier, and shall thereafter deny the claim, or approve payment of the claim in whole or in part, as is appropriate under the law and facts of each case and as consistent with the policy herein, but any payment made shall not exceed the amount permitted by law.