OK, my P&C peeps, I have a HO question for you. Gonna check with my agent too, but want the real pros opinion:
A dead tree fell from the HOA common area into my lot and damaged my fence. HOA Board says they aren’t responsible for repairing my fence (although they did arrange to have the tree removed).
My first call (prior to mgmt co telling me Board declines responsibility) to agent got an office staff member who confirmed that the removal of the tree would be the HOA responsibility. Haven’t called back with new info yet.
I guess these are my options: 1) file with my ins co. pay deductible. let them fight it out with HOA/HOA insurance.
2) make a claim against HOA insurance co. I wouldn’t pay deductible, but I end up fighting with HOA insurance co myself.
3) Sue in small claims court?
2 seems the best option, assuming the HOA has insurance for this.
If they don’t, then go through your own home insurance. that’s what it’s for, assuming the work doesn’t cost less than the deductible.
Removal of the tree isn’t the same as repairing the fence. It’s entirely possible they are responsible for the former but not the latter.
If your agent said the HOA was only responsible for the tree removal, that is probably the case.
I’d figure out the cost to repair and compare to your deductible before you make a claim. Generally, I don’t like to make a homeowners claim unless i really need to. If it is a clear act of god like a hurricane, forrest fire, etc, that may be an exception.
I just mean that they are different physical actions so different people may very well be responsible for doing them depending on your local or state laws.
I guess i assumed from your post that the agent said the HO company was not responsible for the fence. Did you ask the agent and did they say that? That would be the first thing I would do. The agent should know, or should be able to find out from the insurer.
Typically if a tree falls from a neighbor’s yard and damages your fence/house/etc. it’s your problem, despite the tree originating outside your property, except in the case where it was clearly dead and you told your neighbor about it and they did nothing.
In this case with an HOA I don’t know if that changes anything, probably only if the HOA agreement makes special mention.
It fell, breaking about 4 feet from the ground, and lodged in my neighbor’s tree. It hadn’t hit my fence at first. I called my agent, and his office said, yes HOA’s responsibility. I called the HOA’s mgmt company and told them about the tree. They said they’d take care of it. A couple days later, before they came to remove it, parts of it fell to the ground and damaged my fence.
It was clearly dead, but I didn’t tell the HOA in advance of it falling. I did tell them before it damaged the fence. Which is probably a fact pattern that isn’t often seen.
If you informed the HOA that the tree had fallen on the other tree, doesn’t that make their insurer automatically liable? Also, I have a foggy memory of the doctrine of proximate cause that may apply here.
Sorry, i shouldn’t have assumed based on your prior post.
I would think the hoa is responsible if the tree damaged your fence while it was being removed. Probably the tree removal company can be held responsible by them.
If they refuse responsibility then i might ask for the tree company and contact them directly. They might offer to come fix it or to pay for it. The HOA should be willing to contact the tree company for you but it might be easier to just do it yourself.
How much does the fence cost to fix? It might not be worth the lawyers fees to sue anybody. Or maybe do small claims court but that would be a pain. I’d still be reluctant to make an insurance claim but i am more conservative than many about that.
I agree with NormalDan regarding the chain of “responsibilities”.
The damage subsequent to the tree’s fall and prior to its removal may not be a material impact as there will likely be a legal argument that could be made (whether legit or not) that it’s a separate act from the tree falling in the first place; and the cost of that litigation wouldn’t really be worth it in this case.
However, if the HOA acted with due diligence (i.e., they arranged for its removal in a timely manner), there isn’t negligence (which is the source for them being on the hook for the damage to the fence in this case) regardless of how long it might take the tree-removal company to respond.
However, there can be negligence on the part of the tree-removal company if they take an unreasonable amount of time to get there. But again, as magillaG points out, how much is the cost of the fence repair and would it be worth the costs of pursuing litigation?
And if the fence is the only damage to be repaired, I don’t think you’d really want to go through your insurer for that given the final cost of the repairs are likely to be not much larger than your deductible.
The HOA had a duty here to mitigate (keep as small as practically possible) damages from the fallen tree once notified.
I’d get an estimate for repairs and send to the HOA for reimbursement. The HOA can decide if they want to involve insurance. If the HOA still declines to pay you can decide if you want to file small claims.
I don’t think you want to involve your insurance here, filing a claim for a small amount (anything under the small claims threshold) will follow you and may impact your future insurability.
