This article is a companion piece to this video
Subrogating a claim regarding property damage of any kind is a process filled with recovery opportunities and legal pitfalls. This episode of our educational video series explaining subrogation topics in easy-to-understand ways, On Subrogation: Timber!!! Fallen Tree Subrogation Claims, concerns a specific type of property damage that can get tricky quickly: fallen tree damage.
In this episode, RG subrogation attorney Jason Sullivan discusses when a fallen tree isn’t just an accident, and how to successfully subrogate a case of loss from a fallen tree. He explains the process by unpacking 3 important points:
1. Who owned the land the fallen tree was on?
2. Was the tree visibly decayed prior to falling?
3. Was there negligence on the part of the land owner?
When is There an Opportunity to Subrogate Fallen Tree Damage?
Subrogation cases involving fallen trees are more common than you might think. The opportunity to subrogate an insurance claim from fallen tree damage arises when the tree that fell was not on your insured’s property. But be careful; if the tree damaged your insured’s property but was on someone else’s property, it likely stood close to a property line.
Before you initiate any subrogation action, have a formal property line survey done so you can be sure the tree was not, in fact, on your insured’s property. The last thing you want to do is invest the time and money into subrogating a claim against a landowner who had no responsibility for the fallen tree. Depending on the jurisdiction of the incident, you may even be able to confirm the location of property boundaries from information on the county auditor’s website.
How Can You Tell Someone Should Have Known the Tree Would Fall?
In subrogation investigations, photographic evidence is key to providing evidence of negligence. Try to acquire photos from before the tree fell. Was there visible decay? You can often tell via photos when a tree is dead and has potential to fall. If there are no “before” photos, take photos as soon as possible after the incident of loss. This can also help establish the tree was in bad condition for a time before it fell.
One of the most difficult situations when subrogating a case of fallen tree damage is if a tree fell on the car in an area where the insured doesn’t live and was just passing through. In part, this is because they have no familiarity with the tree’s condition beforehand. But this is also because, when your insured’s car is damaged and they are away from home, they likely leave the scene when the tow truck arrives. You may not have photos of anything at all.
You can often interview witnesses who can testify to the tree’s condition as well. For instance, if the tree fell on a business, there are likely several employees who saw the tree daily and could recall its condition. A legal team conducting the initial inquiry for the subrogated tree fall damage needs to get creative in order to collect all possible evidence of the tree’s condition pre-fall.
When is a Landowner Responsible for the Fallen Tree?
Once you have confirmed that the tree was not on your insured’s property and it was in bad condition, you then have to prove the landowner did know or should have known of the decay. These two possibilities are referred to as actual knowledge vs constructed knowledge.
- Actual knowledge: Was the landowner made aware of the condition of the tree? Did they know it was in dangerous condition before the incident?
- Constructive knowledge: Was the tree in such a condition that the landowner should have known? Would a reasonable person have taken action to remedy the situation?
This is a question of common law negligence. It used to be that landowners were not liable for tree damage. They were not obligated to keep track of the condition of their trees. But now, this principle differs in different places.
In rural settings, a landowner is still not responsible for inspecting the condition of trees around their property line. However, if they had knowledge the tree was a danger, they are responsible if they failed to remove the tree once they knew it was decayed. Did the insured, neighbors, or someone else tell them the tree was in bad condition? If so, this could be grounds to hold the landowner liable in a fallen tree subrogation case.
In urban settings, determining liability on a fallen tree case is more nuanced, but there are two avenues to proving negligence. First, actual knowledge of the tree’s condition, just like in rural settings. But the other is the question of constructive knowledge. Should they have known? If so, they should have taken care of it. This is another place where photo evidence from your subrogation investigation comes in handy.
Subrogation Defenses: When is an “Act of God” not Actually God’s Fault?
The two most common defenses a landowner will use to deny responsibility in a fallen tree subrogation case are:
- Not my property; not my tree.
- There’s no way I could have known the tree would fall.
The question of whose property the tree was on can easily be answered by the property line survey the carrier should do after the tree initially fell. But the question of proving the landowner did know, or should have known the tree was a danger can be unclear. This is where the “Act of God” defense comes into play.
The Act of God defense is that the tree fell because of an extreme event of nature that was impossible to predict. The way to unravel this defense is to discuss how extreme the weather event was as well as how common or uncommon the weather event was.
Jason provides the example of tornadoes as opposed to high winds. A tornado is an act of god; they come on suddenly and pose immediate danger. You cannot predict a tornado and, likewise, you cannot predict the frequency of a tornado. In this case, it would be difficult to successfully subrogate a fallen tree claim, even if the landowner should have known the tree was in bad condition.
Other weather situations are different. What about gusts of high winds that aren’t tornado or hurricane-related? If the winds were a microburst and/or the storm was a 1 in 10, 20 or 50-year event, you will likely not be able to prove tortious behavior by the landowner. However, if you live in a place with high winds or heavy storms that occur on a regular basis, then it can be argued that the landowner, not “God”, was responsible for the tree fall because they failed to maintain it even with knowledge of how common high winds and storms are in the place they live.
Often, the biggest factor to overcome in a subrogation claim from fallen tree damage is the landowner claiming ignorance, whether of the condition of the tree or the conditions in which the tree fell. However, with effective subrogation case management by attorneys and specialists adept at subrogating supposed “acts of nature,” you may find a route to recovery that you had previously not thought possible.
You can find more information about subrogating property damage on our Property Claims page. For more digestible discussions on important subrogation topics, check out Rathbone Group’s educational videos and podcasts, On Subrogation.