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