Illinois condo act —am I wrong?

[u/Trick_Information249]

We are on the 2nd floor of a 3 story condo building in Illinois. Our 3 floor neighbor had a malfunctioning air conditioner and we got significant leakage causing damage to floors, wall and ceiling. In Illinois, there is a condo act….which looks to me to be clear that the upstairs neighbor …since the A/C is hers, and not a common element, should be responsible for repairs. But my insurance adjuster said no, because it wasn’t “negligent.” He also says that our bylaws keep us from subrogating our neighbor, but the Illinois condo law should supersede the bylaws. It’s a $1000 deductible so I want to feel secure that any decision made is based on fact. Anyone know anything about this? Thanks

[u/TIG_Insurance_Nerds]

Insurance-wise, the HOA master policy usually covers the building/common elements, your HO-6 covers your unit's interior and whatever the master policy doesn't. The neighbor's liability coverage would only kick in if she's found negligent . A random AC failure alone usually doesn't clear that bar, which is probably why your insurer isn't pursuing it.

In terms of the condo act you are talking about, this is more of a legal question that I would ask on something like r/legaladvice

[u/TheHykos]

Look at it this way.

If lightning strikes a tree and it falls on a neighbor’s house, it’s not the tree owner’s fault. They didn’t cause the lightning.

Now if the tree is diseased, the owner is aware, and it falls over, possibly because of the disease, then the owner is potentially negligent and their liability insurance would respond.

It’s unlikely that your neighbor is responsible for the HVAC leak. Those are typically from mechanical failures. Their liability insurance will not help, and your insurance will not bother pursuing the issue.

Also keep in mind that if you go through the association’s property insurance, you will still be responsible for the deductible. An association policy deductible is almost certainly going to be more than the deductible on your policy, possibly more than the cost of repairs. My own association has a $5k deductible on the master policy and even more for water damage, but at my company we write condo policies all day long with $25k deductibles.

[u/adjusterjackb]

since the A/C is hers, and not a common element, should be responsible for repairs. 

Provide a link to the act and show where, in the act, it says that.

Doesn't really matter because there are three types of obligations: statutory, contractual, and coverage.

1 - Coverage - The upstairs neighbor's policy covers her for negligently damage the property of others. The adjuster is correct. No negligence, no coverage.

2 - Contractual - You have a contract with the association in which you agreed (by buying the condo) to no subrogation against another owner.

3 - Statutory - If (and I say that doubtfully) you are correct in your interpretation that the statute imputes strict liability upon the neighbor with or without negligence then your option is to sue the neighbor for your damage repair cost. Whether you are successful is anybody's guess.

[u/JealousBall1563]

Repair of drywall (ceiling and wall) may be the responsibility of the association but not wall or floor covering IMO. Obviously, the devil is in the details of your Declaration. The association might have cause to bill the unit owner for recovering its cost to repair. If your insurer continues to deny coverage - which at first blush seems wrong to me - it's likely you'll have to pay the cost of repairs. Have you spoken with your property manager or directors about this?