INSURANCE COVERAGE FOR DAMAGE CAUSED BY TREES:
ARE YOU IN GOOD HANDS?
Marin Independent Journal, November 2, 1996
By Barri Kaplan Bonapart, Esq.
Your neighbor's eucalyptus tree comes crashing through your roof,
destroying your brand new furniture. Roots from your neighbor's pine
tree are cracking your driveway and foundation. Your neighbor cuts down
four of your redwood trees assuming, (or so he says) that he had your
permission. These are all too familiar scenarios for those of us who
live in the verdant and majestically wooded towns of the Bay Area.
When beautiful landscaping turns into beastly liability, what help
can you expect from your or your neighbor's insurance company? Whose
insurance company is responsible? How do you present a claim to an
insurer? If your neighbor makes a claim against you for property damage,
must your insurance company pay for a lawyer to represent you? What
right do you have to select your lawyer?
A great deal of confusion surrounds these questions. Being aware of
your legal rights and responsibilities before contacting an insurance
company can help you navigate through the process. You will also be
better prepared to identify and challenge an insurance company that
improperly rejects your claim.
WHAT DOES INSURANCE COVER?
Start by reading your homeowner's insurance policy to see what it
covers and excludes. Although policies differ, certain calamities are
generally covered by most homeowners' policies.
1. Damage to your property from neighbor's trees.
Your policy should cover this. For example, in the case of the
falling eucalyptus tree, your insurance should pay for all damage. This
can include damage to your house, other structures, cars (check your
automobile insurance policy as well), trees, plants or vegetation,
pavement, walkways, or drives, furniture and personal belongings. The
policy should also cover injury to people.
Your neighbors' insurance policy may also provide coverage under
"liability" clauses of their policy. This is particularly
likely if your neighbor knew or should have known that the tree was a
potential hazard. A claim should be presented to your neighbor's carrier
first, since you will not have to pay a deductible if the neighbor's
insurance agrees to pay for all damage.
Some insurance companies try to avoid paying for damage from falling
trees by claiming that they do not cover "Acts of God." This
disclaimer, however, generally applies only to the third- party
liability portion of a policy. In the example of the falling eucalyptus,
the tree owner's insurance company may legitimately refuse to pay the
damaged neighbor if the tree fell with no warning or readily apparent
cause.
However, "Acts of God" are not a basis for the same insurer
to refuse to pay where the tree owner knew or should have known the tree
was hazardous (for example, because you wrote her, telling her you were
frightened that the tree was going to slice your house in two one of
these days and enclosed a copy of your certified arborist's hazardous
assessment). A homeowner's failure to maintain her property which harms
someone is exactly what third- party liability covers.
Similarly, the insurance company for the homeowner with the gaping
hole in her roof may not deny coverage due to "Acts of God"
unless the policy explicitly excludes damage from natural catastrophes.
2. Damage from your neighbor cutting down or trimming your trees
without your permission.
Your insurance company probably covers damage to your trees, up to a
certain dollar amount. For example, many policies pay up to $500 per
tree or five percent of the total property value, whichever is less.
This may fall far short of the actual value as determined by a tree
valuation specialist. Homeowners (and their insurers) are often shocked
to discover that a single tree can be worth thousands or even tens of
thousands of dollars.
Your neighbor's policy under the liability portion should compensate
you for damage you suffer. However, under California law, insurance
companies need not pay for intentional acts of their policy holders.
While it may be tempting to accuse your neighbor of acting out of spite,
ill will, or evil intent, doing so may decrease the likelihood that his
carrier will pay for your damages.
HOW DO YOU MAKE THE INSURANCE COMPANY PAY?
After you determine which insurance company should provide coverage,
make a claim. Your policy may provide specific instructions regarding
time limits, necessary information, and to where to send it. In general,
you should:
1. Be timely. Most insurance companies require that you
notify them of a claim within a very short time or risk giving up
coverage. If the deadline has already passed, you should still make your
claim. Most insurance companies will not deny a claim simply because you
filed late. Regardless of the time requirements, it is generally a good
idea to notify the insurance company immediately even if you have not
yet assessed your damage so that your claim is processed more quickly.
2. Get bids and estimates from your own consultants and contractors.
Do not rely solely on the insurance adjustor for evaluating your
damages. For example, if your home has been damaged, get bids from
reputable, high-quality contractors for all repair work. If trees have
been removed or damaged, have a tree valuation specialist, such as an
aboricultural consultant, to value the trees and vegetation that have
been removed or destroyed.
3. Keep a record. Start a diary of all events from the onset
of the problem through its resolution. Keep all correspondence. Take
notes of all phone conversations including fruitless attempts at
reaching people. Write confirming letters of important conversations,
particularly those in which the insurance company promises - or refuses
- to do something.
4. Present a detailed written claim. An insurance company is
more likely to respond positively if you present a complete package of
information, including a summary of the facts, photographs of the
damage, bids and estimates of your losses, and an itemized statement of
your damages and demand.
5. Be organized. It helps the claims adjustor if information
is presented in an organized, useable format. A claim is made in a
binder with labeled tabs will receive more attention than an envelope
full of scraps of paper, photo negatives, and hand-written notes.
6. Follow up. Be a squeaky wheel. Your adjustor may be
handling hundreds of claim files. You need to make sure your file stays
on top of the pile. This is one time where it is O.K. to be a nudge.
WHAT IF YOU ARE SUED?
If a claim covered by your policy is made against you, your insurance
company must pay for your legal representation. First, you must
"tender the defense" of the claim to your carrier. That means
you must forward the claim or lawsuit to your carrier and request in
writing that it provide you with a legal defense. If your carrier
accepts the tender without any exceptions or reservations, it will
select a lawyer and handle the defense for you.
Your carrier may accept the tender "with a reservation of
rights." This means that it agrees to defend you without admitting
coverage under your policy, and that it reserves the right to stop
defending you or to deny coverage at a future date. In this case, you
are entitled to select your own attorney paid for by the carrier. This
is to make sure your rights are protected from the inherent conflict of
interest created by the insurance company's refusal to admit coverage.
The carrier can refuse to pay more than the going rate for comparable
attorneys, requiring you to pay for the balance.
Even if the carrier accepts the tender without a reservation of
rights, it is still a good idea to request the attorney of your choice.
Select one who has experience in tree and property disputes. Your
insurance company may agree to pay for your lawyer if it is persuaded
that it will save money in the long-run.
Make sure to meet with your attorney at the onset of any dispute to
discuss how you can avoid liability, recover damages, and/or obtain full
compensation from all insurers. This can save you time, money and grief
in the long run.
© 1996 Barri Kaplan Bonapart
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