Root Tree Damage

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PostPosted: Wed Aug 04, 2010 8:25 pm   Post subject: Root Tree Damage  

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

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PostPosted: Wed Aug 04, 2010 8:47 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?

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PostPosted: Thu Aug 05, 2010 7:27 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.

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PostPosted: Thu Aug 05, 2010 7:14 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.

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PostPosted: Thu Aug 05, 2010 8:13 pm   Post subject:   

Quote:
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.
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PostPosted: Fri Aug 06, 2010 5:54 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.



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PostPosted: Fri Aug 06, 2010 11:32 am   Post subject:   

Quote:
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.


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PostPosted: Fri Aug 06, 2010 11:40 am   Post subject:   

Quote:
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.


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PostPosted: Fri Aug 06, 2010 4:00 pm   Post subject:   

Quote:
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......


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PostPosted: Fri Aug 06, 2010 4:34 pm   Post subject:   

Quote:
I was addressing the poster being upset at Allstate




Understood!


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PostPosted: Fri Aug 06, 2010 7:43 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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PostPosted: Sat Aug 07, 2010 4:03 am   Post subject:   

I’m trying to make sure everyone here understands. You had a new wall put in and when the new wall was put in your contractor had to cut out some of the roots where the new wall was being installed. Your contractor was also concerned that the roots may damage the new wall. The new wall was put in and now you are having problems with the root system damaging your wall.



Is this correct?



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PostPosted: Sat Aug 07, 2010 4:32 am   Post subject: Tree Root Damage  

The wall was just installed last week, the contractor was concerned that it would cause damage in the future. Until the trees are permanently removed there is a chance that the roots will continue to grow and lift the foundation up like in the past. There were a lot roots cut to install the new footings for the block wall.

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PostPosted: Sat Aug 07, 2010 4:46 am   Post subject:   

I'm also under the impression that the OP had a prior wall that was damaged by the roots of the tree and this is why the new wall was installed. I'm getting the impression that the OP's complaint is that those tree roots damaged his property and this is what the damages are.



I don't know but I doubt the neighbors can be held responsible for damages caused by the roots of a tree. That is, I fail to see the negligence.

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PostPosted: Sat Aug 07, 2010 5:41 pm   Post subject:   

Quote:
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.




Well, guess what? You probably need to be concerned about the trees moving in the direction of your neighbor's home. Cutting the roots could end up being YOUR LIABILITY if the tree(s) fall on your neighbor's property.



I encountered the same sort of situation when building a property wall several years ago. When we ran into a root in the path of the footing, I approached the "owner" of the tree to discuss its removal. She refused, saying, "I bought this house because I love that tree and the shade it makes" (absolutely not made up!).



So I have an arch at the base of my block wall (in which she did not even cooperate in sharing any of the cost to build) that avoided one of the tree's main roots. But I did, as I am allowed to do, cut every branch off the tree that was on my side of the property line (it was a large pine tree that was actually growing at an angle out of the ground).



Two years later, the tree began to tip due to the excess weight on her side, which I discovered when it began to fracture my wall. I immediately informed her that there was too much weight on the tree and that it (the excess weight) needed to be removed ASAP. No reply.



Two weeks later, when I got home from my agency, I noticed the tree appeared to have been trimmed. Looking over the fence, I found that it had split and fallen, destroying her patio cover, breaking a few windows, and damaging a portion of her roof.



She tried to blame the incident on my having "cut the root" on the tree, at least that's what her "tree expert" told her on the phone (without actually seeing the tree).



Well, today she has no tree at all, and I still have a 4' arched opening at the base of a portion of my 80' block wall that I have to explain to everyone who sees it for the first time.



But the "fracture" mostly is no longer visible with the weight of the tree gone.


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