by Guest » Tue Sep 11, 2012 12:54 pm
My car was parked out in the front of my home. My neighbor is remodeling his home. Later on I found out my car has been over-sprayed here and there. I have to do a re-painting job now. But I'm perplexed about whom should I claim against? From the neighbor, I mean from his home insurance or from the painter’s insurance?
Posted: Tue Sep 11, 2012 07:04 pm Post Subject:
You'd claim against the painter.
I'm also betting that the over-spray can be removed.
Posted: Wed Sep 12, 2012 02:47 am Post Subject:
I'd pursue both the neighbor and the painter to increase your likelihood of recovery. Many contractors are not properly insured or bonded, and sometimes just disappear into the night. A number of common law theories impose liability upon the neighbor for the actions of the painter. The most common theory of liability is referred to as “Respondeat Superior” which holds that a master (i.e. the homeowner) is responsible for the actions of the servant (i.e. the painter)
Posted: Wed Sep 12, 2012 10:24 am Post Subject:
I agree with counselor Crawford. You file claims against both the homeowner and the contractor. Both bear liability for your damages.
And I also agree with tcope: the overspray can probably be removed. Might cost $50 or $100. Unlikely to require a paint job on the vehicle. Start by going to a local car wash detail shop or call a mobile auto detailing service.
Posted: Wed Sep 12, 2012 01:00 pm Post Subject:
While you could argue Respondent Superior, it's unlikely that it would hold up. It applies to things like employer/employee relationships, where the employee is acting under the direction of another party. In this case the homeowner has little to no control over the painter. The painter is not an agent of the homeowner.
Posted: Wed Sep 12, 2012 02:43 pm Post Subject:
I disagree, respondeat superior extends well beyond and employer-employee relationship, in fact its standard pleading in every auto property damage claim where the owner is different than the driver. The driver can be an agent of the owner if he. Is doing something for the benefit of the owner.
Posted: Wed Sep 12, 2012 04:16 pm Post Subject:
Again, I have to agree with counselor Crawford. A homeowner is exposed to claims that result from the acts of contractors and other third parties he invites onto his property to perform/provide services on his behalf.
And where the contractor fails to maintain the necessary insurance or bonding, the homeowner can be held liable for those amounts due as a result of the contractor's negligence -- if the homeowner had not invited that person onto his property, the argument would go, the negligent damage would not have occurred.
When I was remodeling my home, I made sure that my various subcontractors each had their own liability insurance -- as my first line of defense for any damage they caused. I also had my own high limits homeowners policy plus an additional $1,000,000 umbrella liability policy "just in case". A small price to pay in exchange for the peace of mind of being well-covered.
Posted: Thu Sep 13, 2012 12:27 am Post Subject:
in fact its standard pleading in every auto property damage claim where the owner is different than the driver.
A much better argument for that and one that I see named every time is negligent intrustment. It's a much lower hurdle as there are not that many parts involved.
Respondent Superior has several hurdles. Again, the person really needs to be an employee. In this case the paint is not an employee of the home owner. The painter is not under the control of the homeowner, as an employee would be. It does not apply to independent contractors. The paint is not acting as the home owners agent in any way.
And where the contractor fails to maintain the necessary insurance or bonding, the homeowner can be held liable for those amounts due as a result of the contractor's negligence
A person not having insurance or insufficient insurance in no way changes liability or exposure. I don't know of any civil court where insurance information is even allowed.
When I was remodeling my home, I made sure that my various subcontractors each had their own liability insurance
You do that as a prudent step in protecting your own property. You have no direct protection under their liability coverage unless you are an additional insured. For example, in this case if you were the home owner, the painters carrier might settle with the poster but with what you are mentioning, the poster could _still_ come after you and you'd need to address your own defense. So the painters insurance (in that situation) does nothing for you (at least not directly).
Posted: Thu Sep 13, 2012 05:42 am Post Subject:
A much better argument for that and one that I see named every time is negligent intrustment.
Although not exclusive to auto insurance, negligent entrustment is more frequently seen in auto claims than any other. It would have far less applicability to construction claims (as the OP's overspray problem) unless one was aware of the contractor's proclivity to be negligent in his work.
Either way, I could be an additional insured or I can file a cross-complaint against the contractor if I am sued. There are advantages and disadvantages to both positions. The primary advantage as an additional insured is that the contractor's insurer would owe me a duty to defend in the event of a covered loss (as you point out). My own insurance could still be saddled with a contribution claim nevertheless.
the poster could _still_ come after you and you'd need to address your own defense
While this may be true, if the damages claimed were fully covered by the contractor's insurance, there would essentially be no prosecutable claim against me, because there would be a setoff in an amount equal to the settlement proceeds. The injured party cannot collect twice for the same damages, and ideally would file only one civil action against both me and the contractor. It would be up to the trier of fact to decide if I bore any responsibility for the loss.
My initial concern about a contractor having a CGL policy is simply third-party liability for his negligence -- whether it involves damaging my property or that of my neighbors. My contractor is neither my employee nor my agent, so the concept of respondeat superior is inapplicable.
You do that as a prudent step in protecting your own property.
100% correct. Better to be safe than sorry.
Posted: Thu Sep 13, 2012 01:12 pm Post Subject:
Although not exclusive to auto insurance, negligent entrustment is more frequently seen in auto claims than any other. It would have far less applicability to construction claims (as the OP's overspray problem) unless one was aware of the contractor's proclivity to be negligent in his work.
It was in response to Stew supporting his statement by comparing this to an auto accident.
Either way, I could be an additional insured or I can file a cross-complaint against the contractor if I am sued.
You are only an AI when you _are_ an AI. If you only require that the contractor have insurance, you are not automatically an AI under their policy. If the home owner was sued in this case, they would being the painter in on a cross complaint (the reason being... the home owner is not really responsible.
My contractor is neither my employee nor my agent, so the concept of respondeat superior is inapplicable.
Huh? I thought you agreed that Respondent Superior applied? If the painter is not acting as the home owners employee or agent, then it does not apply (which I don't think it does). Hiring someone as a contractor and employing someone are two different relationships (certainly under the law).Posted: Thu Sep 13, 2012 03:52 pm Post Subject:
I never said I thought respondeat superior applied -- i merely agreed that respondeat superior is a legal concept that could extend beyond employer-employee. It clearly does not unless the actor is either considered the same as a statutory employee or is essentially in the same role as an employee, regardless of their title (i.e., an employer cannot improperly classify an employee as an independent contractor as a defense to avoid a variety of liabilities)..
It is a stretch to assert that the person who hires an independent contractor, such as a painter, is subject to respondeat superior. But the fact that the person has hired the contractor/subcontractor (in my case as the "owner-builder") to perform a service exposes that person to liability, just the same. For that reason, I believe negligent entrustment is the better legal theory.
So, as we commonly do, when it could be uncertain as to who bears the bulk of liability, we recommend filing claims (or suing) all of the involved parties just to make sure we've got our claim covered. Of course, it doesn't mean we'll win.
And as far as my statement about being an additional insured or not -- well, I have to admit that it was poorly written. I intended it to mean that I could have chosen to be made an additional insured or, as I did choose, to not be one. What I wrote was not intended to be an either-or statement of automatic inclusion. I accept your hand slap.
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