Risk & Business Magazine JGS Insurance Winter 2019 - Page 7

TREE LIABILITY First, the easy claim: if a tree falls onto covered owned property (a home, a building, a fence, etc.), the policy will pay to repair or replace the damaged property (less the policy’s property damage deductible) as well as “your reasonable costs” to remove the tree, though insureds are encouraged to check with their agents for individual policy language limitations on debris removal. The debris left behind by trees that simply fall on the ground without damaging covered property is typically considered a maintenance issue and not an insurance loss. If covered property wasn’t damaged by the fallen tree, and the tree simply falls onto the ground or is brought down by an “Act of God” such as a storm, the cost to remove the tree is the responsibility of the owner of the property. But what about trees that fall onto someone else’s property? Home and business owners understandably cry foul when a tree on someone else’s property falls onto their own, and the inclination is to ask the tree’s owner to come clean up their tree. Unfortunately, what was once your neighbor’s tree now has become your tree— and your mess to clean up. Certainly good neighbors may feel compelled to share in the cost of removing a tree that’s fallen, but the easy way to remember who pays after a tree falls from an “Act of God” (i.e., a tree that falls because of wind or weather-related occurrences) and not because of any problem with the tree is that the owner of the damaged property pays: • If the tree belongs to you and falls onto your own property but didn’t damage any covered property, you pay to have the tree removed (maintenance). • If the tree belongs to you and falls onto and damages your covered property, your insurance covers the loss, less your policy’s deductible. Insurance will also likely pay the debris removal costs, sometimes at a percentage of the loss. Check with your carrier to see how your specific policy language is written. • If the tree belongs to you and it falls onto your neighbor’s property but does not damage covered property, the neighbor pays to have the tree removed (maintenance). You would be responsible for cleaning up any debris remaining on your own property and any stump removal. • • If the tree belongs to you and it falls onto a neighbor’s home, shed, fence, or other real property, the neighbor’s insurance policy would respond to the claim, provided the tree was not dead or dying (liability). If a tree falls onto a vehicle—whether your own or someone else’s—the owner of the damaged vehicle’s auto insurance policy will respond to the loss (filed under the auto policy’s comprehensive coverage). Where live property coverage is concerned, insureds should also check their policies for the existence of coverage and the limit provided. Should a live tree be struck by lightning, for example (a covered peril), the property policy would pay for the tree subject to the policy limits for live property, but coverage may not apply for removal of the tree if covered property was not also damaged. In addition, live property is limited to named perils: fire, lightning, explosion, riot or civil commotion, and aircraft or vehicular damage. Broader policy forms may also include vandalism, malicious mischief, and theft. Wind and hail losses are excluded under most property forms. Consider a homeowners association scenario where a tree in the common area falls onto an individual home: unless the tree was dead or dying, the homeowner would seek recovery from their homeowners policy, including the cost to remove any debris. Damage to the tree owned by the association would be covered under the association’s live property limit, provided the tree was damaged by a covered peril. That said, there is a clear delineation of liability. In cases where a resident has advised the association of concerns that a dead or dying tree may fall on their property, it is advisable that the association have an arborist check the health of the tree and have it removed immediately, if necessary. Diseased or dead trees that fall from a common area onto adjacent private property would be a claim against the association’s liability policy and not the individual homeowner’s policy. In addition, trees that are dead or dying can also lead to bodily injury claims, another reason to make certain that owned trees are inspected regularly and any problem trees are removed promptly. The same holds true of dead or dying trees on private property. Suppose a neighbor advises another neighbor of concerns about a tree and the tree’s owner fails to do anything about it (negligence). If the dead tree falls (or its branches fall) and damages the neighbor’s property, the tree’s owner would be liable for the neighbor’s property damage and debris removal. While the rules on tree liability can sometimes seem to run perpendicular to common sense, it’s easiest to remember that insurance is carried to address financial loss of owned property. Unless property is damaged by someone else’s negligence, misuse, or neglect, the property owner’s policy is triggered to repair and replace the owner’s property following a loss. + BY: ROBIN MANOUGIAN VICE PRESIDENT, JOHN MANOUGIAN INSURANCE AGENCY, A DIVISION OF JGS INSURANCE Robin Manougian, CIRMS, is a licensed Property and Casualty insurance agent (DC, MD, VA, DE) in Silver Spring, MD, and is responsible for a large portion of the Agency’s community association practice. Robin is a CAI-Educated Business Partner and an 11-year member of the Maryland Legislative Action Committee, a CAI National committee. Robin has also been a presenter at numerous CAI National conferences and law seminars. 7