On Monday, August 11, the metro Detroit region was hit hard with torrential rains, causing many communities to become inundated with several inches of precipitation in a relatively short period of time. As a result, thousands of metro Detroit residents experienced sewage backup onto their property.  The law regarding the rights and obligations of the municipalities and their residents in the event of sewage backup is surprisingly developed and sophisticated.  Most people do not have flood insurance or sewer backup coverage.  Thus, for most people, the only way to obtain any compensation for their losses is to follow state law on filing claims with their city.

In 2002, the Michigan legislature enacted a statute that sets forth a detailed system that residents must follow if they hope to be compensated for damages stemming from sewage backup. A municipality is entitled to immunity from tort liability for actions undertaken in the operation of its water and sewage department, unless a statutory exception applies. In certain contexts, a governmental agency can be held liable for damages, or physical injuries caused by a “sewage disposal system event.”

Both the claimant and the appropriate governmental agency are required to comply with statutory procedures before anyone can file suit.

Under the statute, a “sewage disposal system event” means the overflow or backup of a sewage disposal system onto real property, however an overflow or backup is not a sewage disposal system event if any of the following was a substantial proximate cause of the overflow or backup: (1) an obstruction in a service lead that was not caused by a governmental agency; (2) a connection to the sewage disposal system on the affected property, including, but not limited to, a sump system, building drain, surface drain, gutter, or downspout; or (3) an act of war, whether the war is declared or undeclared, or an act of terrorism. 

In order to receive compensation for a sewage disposal system event, a claimant must notify the governmental agency of a claim of damage, in writing, within 45 days after the date the damage was discovered, or in the exercise of reasonable diligence should have been discovered. However, a claimant’s failure to comply with the notice requirements does not bar the claimant from bringing a civil action against a governmental agency whose contacting agency was notified orally or in writing of an event before providing the requisite notice of a claim if the claimant can show that: (1) the claimant notified the contacting agency during the 45-day notice period; and (2) the claimant’s failure to comply with the notice requirements resulted from the contacting agency’s failure to comply with its duties to provide information regarding the notice requirements.

If the governmental agency and the claimant do not reach an agreement on the amount of compensation for the property damage or physical injury from a sewage disposal system event within 45 days after the agency’s receipt of the claimant’s notice of the claim, then the claimant may file a lawsuit. The claimant may not file a lawsuit for economic damages until after the expiration of the 45-day period.

The 45-day period before filing a civil action does not apply to claims for noneconomic damages (i.e. personal injury).

The governor has declared Wayne County, among other local regions, a disaster area.  The hope is that federal funding will make its way into the hard-hit communities to help homeowners and business recover from the damage.  But, it is far from clear which funding, if any, will be available to compensate the victims.  

If you experienced sewage backup onto your property during the recent heavy rainfall, you should file a claim with your city immediately.  If you have questions about how to get this process started, you should consult with an attorney who is knowledgeable about this area of the law. 

— Kassem Dakhlallah is a senior partner with At Law Group, PLLC.  His practice focuses on complex litigation, including class actions, representative actions, commercial litigation, civil forfeiture and personal injury. He can be reached at (313) 406-7606 and kd@atlawgroup.com.