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HO Coverage for Damage Caused by Falling Tree

Author: David Thompson

It will come as no surprise to those who know me when I say, “At my daughter’s engagement party a few days ago, I struck up a conversation with someone about how Section II of the homeowners policy responds in a situation when a tree falls.” Leave it to me to ruin any good party! Let me explain and try to “defend” what happened!

Yes, I was at an engagement party for my daughter, hosted by friends from church at their house. Yes, the subject of insurance did come up. I am guilty as charged! As I was mingling among some friends, I saw my friend Jack (name changed) who is an attorney specializing in insurance defense. Jack and I often compare notes about what we are running across as it relates to insurance claims. I asked Jack, “So, are you working anything hot these days?” His reply was that he was defending a case where, during a heavy thunderstorm, a father and his son were driving along a state highway when a gust of wind blew a tree down, tragically hitting the car and killing both occupants. It was a terrible tragedy of being in the wrong place at precisely the wrong time. The human tragedy, of course, turned into an insurance claim which Jack was defending on behalf of a homeowners and umbrella carrier.

As I discussed the claim with Jack, I was reminded of the hundreds of times that I have received an e-mail or phone call asking, “My neighbor’s tree fell on my house; how does insurance work?” It seems like such a simple question.

I asked Jack to tell me what he was looking at in order to determine the issue of negligence and legal liability. He explained that the tree was on a vacant lot and was owned by an individual who was somewhat “well to do,” owning two houses and a business. The insurance involved included two homeowners policies and a personal umbrella; the plaintiff’s attorney was seeking policy limits under all policies. In investigating the situation, Jack and the insurance company had hired a forestry expert to examine the tree. An entomologist was also retained to examine the tree and weather records were obtained for the date and time of the event. Additionally, the landowner, a realtor who had listed the property, and an eyewitness in a vehicle just behind the accident were all interviewed. The tree had even been removed at the request of Jack and it was in a warehouse nearby.

The report from the forestry expert and entomologist revealed that the tree was “fully barked” and showed no visible exterior signs of death, decay, or infestation. When then interior of the tree was examined, however, the forestry expert stated that there were signs of decay inside, indicating that the tree was in the early stages of dying. The realtor and landowner both stated that upon numerous visits to the property, there were no visible signs that the tree was dead or had dead limbs on it. The eyewitness stated that he was driving behind the vehicle when he felt a sudden gust of wind rock his car at the same time that the tree fell.

I asked Jack, “So, what’s your thought about how it will turn out?” He said, “One homeowners carrier has offered policy limits. My carrier will offer a good sum of money because we are concerned that a sympathetic jury would award a huge sum in this situation.” Jack went on to say, “Even after all my years of doing this, I still have a hard time understanding why so many people push and push for every insurance dollar out there, even when the issue of negligence is far from clear.” I’ve known Jack, through church, for almost 15 years and I can honestly say that I have never met someone (attorney or otherwise) whom I respect more. I’ve heard him say a dozen times, “Our client was at fault and we owe a lot of money here.” Likewise, I’ve hear Jack say just as many times, “The plaintiff is a good person as is his attorney, but our client is not negligent and we just don’t owe money here.”

The whole time Jack and I were talking (honestly, it wasn’t the WHOLE night!) my mind was whirling, thinking of agents writing me asking what, to them anyway, is that simple question of, “Whose insurance pays here?” 

Falling trees are not always easy claims to deal with. All of the facts must be examined to determine negligence/legal liability. As is evident by my discussion with Jack, at times a seemingly simple claim can turn into a complex situation with attorneys involved and tens of thousands of dollars being spent on both sides. It’s just not a case that any time a tree falls, someone is negligent and they owe someone else money; each case is different and must be examined on the merits.

Oh yeah, the engagement party…it was good. The hosts cooked BBQ chicken and the baked beans, cole slaw, and iced tea was all catered by Sonny’s. That’s my kind of engagement party; Sonny’s BBQ and heavy discussions of Section II of the homeowners policy! As we say in the South, “It ain’t gonna get any better than that!”

Last Updated: July 15, 2016

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