We previously discussed fallen trees and what coverage the Ohio homeowners insurance policy provides for repair and cleanup.
In this post, we’re going to get into the heart of many arguments concerning fallen trees- who’s responsible for the tree when it falls? This is very common when properties and yards are right next to each other.
We’ll discuss two real-life claims, their outcome and dig deep into the homeowners insurance liability portion of the policy to explain the reason for these outcomes.
Claim Example 1
A customer called with this question: “I think I know the answer to this, but wanted to call anyway. The high winds knocked my neighbor’s tree onto my shed. Her homeowners insurance liability would pay to fix the shed, right?”
Imagine his surprise when I replied “No, the tree fell in your yard, so your homeowners policy pays to remove the tree and fix the shed.” SILENCE. I think I even heard crickets.
Then the sputtering began- “What? How can that be? It’s HER tree. It should be her responsibility.”
I get it. Truly I do. It does seem rather unfair that my customer’s policy would be required to pay the claim, doesn’t it? But first you have to understand how homeowners insurance liability works to understand WHY this played out like it did. Read on for the reason…..
Homeowners insurance and the concept of negligence
The basis of most liability insurance claims is the concept of negligence (the insurance policy is a legal contract after all). Negligence is composed of 4 parts, which are: Duty owed, Breach of Duty, Proximate cause, and Damages. Let’s move backward through the previous example to see how it would apply:
Damages- Yes, the shed was damaged due to the tree falling on it.
Proximate cause- High wind knocked over the tree, which in turn caused the damage to the shed.
I’ll lump the final two together- Duty Owed and Breach of Duty. This is where the logic breaks down. Who had a duty to make sure the wind didn’t blow so strongly? The neighbor? Of course not. She had no control over the weather (and I assume still doesn’t). So if she has no duty owed, then she can’t have a breach of that duty. Therefore you can’t hold her liable. And the insuring agreement in most homeowner policies usually says something like this- “We will pay what we are legally obligated to pay…….”
Those that want to collect under Mother Nature’s policy, by all means give it a try. Please let me know how that works out.
So when negligence can’t be proved, the only way to get the damage fixed is by collecting on your own homeowners insurance policy. Or if the damage isn’t much, you can pay out of pocket.
Claim Example #2- What if negligence can be proved?
A neighbor’s tree fell onto our client’s garage. There had been prior discussions between the neighbors that the tree was dead, yet the tree owner did nothing to prevent the situation from happening. There were some heated discussions and we had to calm them both down. For situations like this, let YOUR insurance take care of you. They will take statements from all parties involved and if it’s discovered that the tree owner knew the tree was dying or diseased, but did nothing about it, then they will most likely file a subrogation claim with the neighbor’s homeowners insurance company. Your insurance company will seek reimbursement from the other insurance company for damages paid. If the other person is in fact found liable, all damages can hopefully be recovered, including your deductible.
Moral of the Story
If a tree is on your property, it’s YOUR responsibility. Period. If it’s on your house, it’s doubly important to get it removed ASAP. That is NOT the time to pick a fight with the neighbor- call your insurance company/agent and report the claim so the repair and cleanup process can begin.
IF you suspect negligence, then be sure to mention it in your claim report. An investigation will happen, as mentioned above, to determine whether or not negligence exists.