by richa » Wed Aug 04, 2010 08:25 pm
My neighbor's trees caused me $10,600.00 worth of damage to my block wall and pool deck. I spoke to two different renters about the problem with no response from the owner. In California small claims the limit is $7500.00. What alternative do I have to sue for the full amount
Posted: Wed Aug 04, 2010 08:47 pm Post Subject:
I don't know the structure in CA but probably district court. While you can represent yourself, it's extremely difficult to accomplish anything in District Court without vast legal knowledge of the system. It would also probably cost you a thousand or two to hire an attorney.
Your own homeowners insurance did not address your loss?
Posted: Thu Aug 05, 2010 07:27 am Post Subject:
Yes, I'm also curious to know whether you've shared it with your home owners' insurance. Otherwise as you can see, even if you hire an attorney and achieve a settlement worth $10,600, it's not gonna make much difference than the small claims limit in CA after paying $2,000 to your attorney.
Posted: Thu Aug 05, 2010 07:14 pm Post Subject: Root Tree Damage
I filed a claim with my insurance and they denied it saying that they did not cover root damage. They basicly told me I was on my own. I even called my insurance agent and threatened to cancel and they still refused to help collect from the owners insurance. You have a point, it is probably best to go for the $7500.00 in small claims. My insurance is Allstate all they care about is taking your money.
Posted: Thu Aug 05, 2010 08:13 pm Post Subject:
saying that they did not cover root damage.
I don't know if it's covered but I do know that there is not "root damage" exclusion in the policy. They should have sent you a written denial and outlined why it was not covered. What did it say? Only thing that comes to mind is sudden and accidental.Posted: Fri Aug 06, 2010 05:54 am Post Subject:
My guess is the denied under one of the following;
Losses we do not cover under Coverages A, B, C
Growth of trees, shrubs, plants or lawns whether or not such growth is above or below the surface of the ground.
or
settling, cracking, shrinking, bulging or expansion of pavements, patios foundations, walls, floors roofs or ceilings.
there is also
Earth movement of any type, including but not limited to earthquake, volcanic eruption.....sinking, rising, shifting, creeping, expanding, bulging, cracking, settling or contracting of the earth.
There is really nothing your agent or insurance company can do for you. You may want to send your neighbor a letter letting them know your intent to file suit. That might light a fire under them to get their insurance company involved.
Posted: Fri Aug 06, 2010 11:32 am Post Subject:
Losses we do not cover under Coverages A, B, C
Yes, this would be true of the OP's own trees and shrubs causing damage to his own property, but it does not address the neighbor's liability for damage to the property of another.
As for earth movement, displacement by tree roots is not normally considered as such. It is the sudden "sinking, rising, shifting, creeping, expanding, bulging, cracking, settling or contracting of the earth."
There was an incident here is So Cal some 15-20 years ago involving earth movement that was covered by a homeowner's liability coverage. A family was going on vacation and asked one of the neighborhood kids to water the plants while they were gone.
The kid dutifully does so. But one day he notices a gopher hole on the hillside in the backyard. So he shoves the hose into the hole and turns on the water. Then he proceeds to forget that he did that and goes home. Next day, the saturated portion of the hillside collapses into the home.
The propertyowner's homeowner's policy did not pay under the earth movement exclusion, but the neighbor's policy did pay under the liability section as the result of the child's negligent act.
In this OP's post, if the tree owner negligently failed to maintain the tree so as to not damage a neighbor's property, such as a block wall or wood fence, then they probably bear liability for the damage, and their homeowner's policy should cover the loss.
But tree roots can do all sorts of damage on their own. Lifting sidewalks or driveways or wall footings could be a natural occurrence, including due to lack of water (and still not be considered negligent), or they could be influenced by the failure to trim the tree to prevent the weight from causing the tree to shift (which could be negligence).
So this is one of those situations that may come down to some judge's decision rather than some adjuster's or claims examiner's.
Posted: Fri Aug 06, 2010 11:40 am Post Subject:
I even called my insurance agent and threatened to cancel and they still refused to help collect from the owners insurance.
Idle threats don't scare agents or insurers. Your agent/insurer has no duty to collect on your behalf (or assist you to collect from a third party), it will only attempt to collect from another insurer if it pays a claim on your behalf that the other insurer should have paid.
So if your neighbor's insurer refuses to pay, then your only choice is to sue your neighbor and hope the judge sees it your way. Then the insurer will have to pay.
Beyond Small Claims Court, where no lawyers are permitted, if you file in CA Superior Court for damages in excess of $7500, your neighbor's insurance company will send an attorney to represent their insured, and you may be outgunned if acting "in pro per". To hire your own attorney will cost you money out of pocket, perhaps an additional percentage of the judgment if in your favor, and those expenses might not be ordered to be paid by the other party by the judge. So you could win and still lose.
Posted: Fri Aug 06, 2010 04:00 pm Post Subject:
Yes, this would be true of the OP's own trees and shrubs causing damage to his own property, but it does not address the neighbor's liability for damage to the property of another.
I was addressing the poster being upset at Allstate for not covering the loss and not helping them recover from the other party. I was just pointing out several exclusions that they may be using to deny coverage......
Posted: Fri Aug 06, 2010 04:34 pm Post Subject:
I was addressing the poster being upset at Allstate
Understood!
Posted: Fri Aug 06, 2010 07:43 pm Post Subject: Tree Root Damage
You are correct, my claim was denied because the losses were not covered under Coverages A, B, C. And yes the neighbor has not maintained the trees, I have had to cut limbs that started hanging over my block wall. The trees have moved slightly since the roots were cut when the new wall was built. The contractor was concerned that the roots would continue to damage even the new wall. I know idle threats won't do any good with my insurance, but you would think that it would be like when you have a car accident and your not at fault. They help you collect from the other drivers insurance. I will talk to the renter again, this time I will ask him for the owners name, phone number and address. Hopefully he will give them to me, if not then I will go to small claims. Thank you all for your input it has been very helpfull.
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