Remember the inane musing about when a tree falls in the forest—does it make a noise if no one is there to hear it?
The tenant of a commercial property owner called to say a tree on the owner’s property fell on his car during a recent storm causing significant damage. The tenant wanted the owner to contact his insurance company and take responsibility for repair of his car damage, because after all it was the owner’s tree that did the damage.
Unfortunately, the policy that protects the property owner for his legal liability to third parties contends there was no negligence on the owner’s part, a necessary requirement to trigger payment from the owner’s policy.
Does this sound like an insurance company just itching to avoid paying a legitimate claim?
Let’s change the facts to draw a distinction. What if the tree had been diseased, and the tenant had warned the owner repeatedly about the danger it posed; would that make a difference in this claim? Yes. In that case, it could be argued that the owner was negligent. He was made aware of the unsafe condition posed by the diseased tree, and warned repeatedly about it, and his negligence was responsible for the damage.
In the instant case however, there were no warnings from the tenant and no visible evidence before the accident that the tree was a danger to the public.
The tenant was directed to his own auto insurer, where he is subject to a property damage deductible in such a claim. If the auto insurer feels there is negligence on the part of the property owner, it can certainly subrogate the claim to the property owner’s insurance policy, but not likely.
I have seen a building owner pay the tenant’s auto property damage deductible in a case like this, but only as a good faith gesture to be kind to the tenant who is his customer after all.
Here’s the irony. If the tenant were unhappy with this outcome and chose to sue the property owner, the property lease between the owner and tenant would come into play. As a requirement of that lease, the tenant has named the owner as an “additional insured” on his insurance policy, and has agreed to hold the owner harmless for any claims against him. Thus, if the tenant were to try to sue the property owner, because of giving additional insured status and a hold harmless to the property owner, he brings his own policy into play to defend the property owner!
A tree fell in the silence of the night…and now comes the noise!
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