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Neighbor's tenant may try to sue me.

Old 06-27-09, 09:52 AM
  #126  
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Originally Posted by Square & Compas View Post
Sure you can sit there behind your computer keyboard and tell me what I should do in your responses to this. But when I ask you to put yourself in the same situation and ask what you would do when a insurance agent or attorney advises you to NOT pay it becomes a bit more difficult to answer such questions, doesn't it?
Well, I would have offered to pay her out of my own pocket and never contacted my insurance company in the first place (knowing that my deductible wouldn't make it worth filing a claim for this small amount).

I would have gotten together the tree parties involved and said, "How about we split it three ways. Yes, it was my tree, but it appears healthy so this might be a freak accident that i couldn't have prevented and therefore am most likely not legally liable for; it is hanging over your property which legally makes it your responsibility no matter how stupid we might think that law is since surely it is more logical to place tree ownership/liability with the trunk not the ends of the branches that I've allowed to encroach on your property; and to you young lady, well, you parked under a tree in a strom and sometimes these things happen so how about you pay some as well. Here's $200 for my third of it."
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Old 06-27-09, 09:59 AM
  #127  
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Originally Posted by pacificaslim View Post
Well, I would have offered to pay her out of my own pocket and never contacted my insurance company in the first place (knowing that my deductible wouldn't make it worth filing a claim for this small amount).

I would have gotten together the tree parties involved and said, "How about we split it three ways. Yes, it was my tree, but it appears healthy so this might be a freak accident that i couldn't have prevented and therefore am most likely not legally liable for; it is hanging over your property which legally makes it your responsibility no matter how stupid we might think that law is since surely it is more logical to place tree ownership/liability with the trunk not the ends of the branches that I've allowed to encroach on your property; and to you young lady, well, you parked under a tree in a strom and sometimes these things happen so how about you pay some as well. Here's $200 for my third of it."
How dare you recommend a win/win solution that involves things like courtesy, compromise, common sense and other words that don't even begin with c. What kind of a pinko, commie are you anyway, Slim?
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Old 06-27-09, 10:02 AM
  #128  
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Originally Posted by chipcom View Post
How dare you recommend a win/win solution that involves things like courtesy, compromise, common sense and other words that don't even begin with c. What kind of a pinko, commie are you anyway, Slim?
Let's sue him.
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Old 06-27-09, 10:04 AM
  #129  
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Originally Posted by thebarerider View Post
Let's sue him.
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Old 06-27-09, 10:38 AM
  #130  
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Originally Posted by chipcom View Post
I'd listen to my attorney, as I have already suggested you do. Talking to him/her about something similar or hypothetical back in the day doesn't cut it...that was then, this is now, circumstances are never exactly the same, laws and their interpretations change, etc. Don't be stoopid, call your attorney.

F the insurance agent, they look out for their company, not for you.
Under the circumstances presented here, how is the insurer's interest different from the policyholder's interest?

Under most liability (third-party) insurance policies, the insurer has two separate duties. First, the insurer has a duty to indemnify the policyholder for all sums which the policyholder becomes legally obligated to pay as damages as the result of personal injury or property damage to a third party. That means that if S&C were to be sued, and a judgment were to be entered against S&C, the insurer would be required to indemnify S&C for that judgment.

Second, the insurer usually has the "right and duty to defend" the policyholder against claims or suits alleging liability covered under the policy. The duty to defend is generally held to be broader than the duty to indemnify, and is based on the allegations of a claim, regardless of whether those allegations are ultimately found to be true. In other words, if S&C is sued, his insurer has an obligation to retain counsel to defend S&C in the lawsuit, regardless of whether S&C is ultimately found to be liable. Even though such attorneys are appointed by the insurance company, the client of the attorney is usually considered to be the policyholder, not the insurance company, and the attorney's primary duty is to the policyholder. S&C has indicated that his insurer has acknowledged its duty to defend.

Where is there any potential conflict of interest here? Why should S&C go to the expense of retaining separate counsel, and incurring legal fees that may well equal the amount of the loss itself, when counsel will be assigned by the insurer to defend S&C in the event that suit is filed? Here, there has been no suit filed against S&C, so there is nothing for either S&C or his insurer to defend. In the event that there is a suit filed against S&C, the insurer will be obligated to defend that suit. It is the insurer, and not S&C, that faces the prospect of incurring costs of defense. The insurer has the right to settle the claim at this point, and insurers will often do so in order to minimize defense costs as well as the policyholder's potential exposure. However, there is no requirement that they do so. Here, the insurer has evidently made the determination that the risk of the injured party commencing a suit is low enough that it does not justify pursuing any settlement discussions. Given the relatively small amount of damages in relation to what it would cost the injured party to commence a lawsuit, that would appear to be a reasonable decision.

For those of you recommending that S&C settle out of his own pocket, the same provision in the insurance policy that imposes upon the insurance company the duty to defend also gives the insurance company the right to control the defense. Moreover, the insurance company's duty to indemnify is usually limited to liability arising either from a judgment against the policyholder or a settlement entered into with the consent of the insurance company. Thus, if S&C were to settle this claim out of his own pocket, he would potentially risk the coverage that he paid for and which the insurance company appears willing to provide.

It is also worth noting, for those of you who have mentioned the deductible, that deductibles more commonly appear in the 1st party part of a homeowners policy, not the liability coverage part. In other words, there may not be a deductible applicable to this claim.
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Old 06-27-09, 10:51 AM
  #131  
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Originally Posted by Febs View Post
Second, the insurer usually has the "right and duty to defend" the policyholder against claims or suits alleging liability covered under the policy....
Where is there any potential conflict of interest here?...
I can see a potential conflict of interest. What if there is a disconnect between what the insurer believes is covered, and what the law says the homeowner is liable for?
Isn't it possible that the insurer could argue that this isn't "covered" under the policy, in that they don't insure "Acts of God", but the courts could find the homeowner is liable? Why should the insurer defend someone who is sued for something they aren't insured for?

Originally Posted by Febs View Post
Thus, if S&C were to settle this claim out of his own pocket, he would potentially risk the coverage that he paid for and which the insurance company appears willing to provide.
I can see that if he paid by his own choice out of his own pocket, he couldn't automatically expect the insurer to reimburse him, and if the car was later discovered to have even more damage, he would likely have lost any leverage with the insurer to get them to help with that, but would he be jeopardizing any future coverage on unrelated incidents?

Last edited by cooker; 06-27-09 at 11:02 AM.
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Old 06-27-09, 11:09 AM
  #132  
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Originally Posted by cooker View Post
What if there is a disconnect between what the insurer covers and what the law says the homeowner is liable for?
Is it possible that the insurer could argue that this isn't "covered" under the policy, in that they don't insure "Acts of God", but the courts could find the homeowner is liable? Why should the insurer defend someone who is sued for something they aren't insured for?
You are correct that an insurer does not have a duty to defend a policyholder against liability that clearly isn't covered under the policy. For example, if a doctor causes an automobile accident, the doctor's medical malpractice insurance would not need to respond to a resulting claim, because that is not the type of liability covered by the policy. If there is truly no possibility of coverage, then the insurer can disclaim coverage. Most states require such disclaimers to be in writing; some require them to be issued within a specified amount of time.

The more common situation, however, is where there is an allegation which, if proven, would result in liability under the policy, but there is some question as to whether the injured party can prove the allegation. Because the duty to defend is broader than the duty to indemnify, the insurer usually has an obligation to provide a defense if any part of the suit would potentially be covered. To use a clear-cut example, let's take the example of an auto accident case. The injured plaintiff alleges that the defendant driver intentionally struck him. The plaintiff alleges in the alternative that even if the conduct was not intentional, the defendant driver was negligent. Liability insurance policies typically cover negligence, but not intentional conduct. In this case, however, since there are two different theories of liability, one of which would fall within the policy and one of which would not, the insurer would usually be required to defend unless and until a determination is made in the lawsuit eliminating the theory of liability under which there could be coverage.

Getting back to your specific question, I'm not familiar with Iowa law regarding the responsibilities of a homeowner with respect to trees on his property, but to say that an injury caused by a falling tree branch is an "Act of God" implies that there is no negligence on the part of the homeowner. Thus, were the injured party to sue here, the complaint would likely allege not that there was an "Act of God," but rather that the tree was negligently maintained.
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Old 06-27-09, 11:31 AM
  #133  
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Originally Posted by chipcom View Post
How dare you recommend a win/win solution that involves things like courtesy, compromise, common sense and other words that don't even begin with c. What kind of a pinko, commie are you anyway, Slim?
being out $200 bucks for doing nothing doens't sound like a win to me...
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Old 06-27-09, 11:48 AM
  #134  
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Originally Posted by heckler View Post
being out $200 bucks for doing nothing doens't sound like a win to me...
For "nothing"? For a mere $200, I'd get to solve a problem, help another human being who was damaged through no fault of her own, maintain/build good relations with neighbors, and best of all I'd sleep better knowing I've been generous rather than selfish. Only $200 for all that? It's a bargain.
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Old 06-27-09, 11:54 AM
  #135  
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Well $200 is a new pair of shoes...or a tricked out name tag.

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Old 06-27-09, 09:25 PM
  #136  
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For those here that think I ought to settle and pay out of my pocket, forget about it and get over yourselves. It isn't going to happen! I don't know what else I can say to convince you of that. I am standing my ground here, both with her and you. You'll never going to convince me otherwise, so give it up. What some of you think if you say I ought to pay her out of pocket and settle with her out of court enough times I'll go ahead and do it? Wrong!!! If anything it will cause me to just dig my heels in even deeper and stick to my guns even more! But if you think you can convince me, well take your best shot, but you're gonna be disappointed.
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Old 06-27-09, 09:49 PM
  #137  
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I'm not trying to convince you. I was just shocked at your statement that you would set morals and ethics aside for purely financial reasons - it seemed to clash with so much you had posted in the past about your moral upbringing and the importance of right and wrong. It seems if you don't like somebody, or it might cost you money, all that goes out the window.
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Old 06-28-09, 07:56 AM
  #138  
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Originally Posted by lauren View Post
I think the people acting like $200 is nothing need to send me a check for that amount.

I am also the victim of an act of God, only far worse than a tree branch. I got lyme disease from a tick on the property of an apartment I rented. Should I sue the landlord for all the damages that has done? I most likely have permanent neurological damage, I deserve your money far more than someone stupid enough to park a car under a tree during a storm then let the dealer fix it!
For someone who has their location listed as 'liberal whinerville, NC' you sure whine a lot......
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Old 06-28-09, 09:31 AM
  #139  
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Originally Posted by Square & Compas View Post
For those here that think I ought to settle and pay out of my pocket, forget about it and get over yourselves. It isn't going to happen! I don't know what else I can say to convince you of that. I am standing my ground here, both with her and you. You'll never going to convince me otherwise, so give it up. What some of you think if you say I ought to pay her out of pocket and settle with her out of court enough times I'll go ahead and do it? Wrong!!! If anything it will cause me to just dig my heels in even deeper and stick to my guns even more! But if you think you can convince me, well take your best shot, but you're gonna be disappointed.

I'm not trying to convince you. But the more you talk, the worse of a human being you sound like, and so you're making it less likely the next guy in this situation will want to be "that guy" like you who only cares about himself. So keep digging in those heels and providing such a brilliant example of selfish behavior for us. It'll make the world a better place in the long run as more people seek to avoid being "that guy".
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Old 06-28-09, 10:21 AM
  #140  
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Originally Posted by pacificaslim View Post
I'm not trying to convince you. But the more you talk, the worse of a human being you sound like, and so you're making it less likely the next guy in this situation will want to be "that guy" like you who only cares about himself. So keep digging in those heels and providing such a brilliant example of selfish behavior for us. It'll make the world a better place in the long run as more people seek to avoid being "that guy".
Are you saying that the tenant isn't in it for reimbursement solely for their own benefit?

She could've easily taken your stance and paid for it herself instead of trying to find someone else to blame.
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Old 06-28-09, 11:13 AM
  #141  
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Sure. Except she was parked in the driveway, minding her own business, and then her property was damaged by someone else's property and it is therefore more reasonable that the other person pay. "Act of god" or not, if the OP didn't have that tree, it wouldn't have fallen on the tenant's car.
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Old 06-28-09, 11:46 AM
  #142  
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Originally Posted by pacificaslim View Post
Sure. Except she was parked in the driveway, minding her own business, and then her property was damaged by someone else's property and it is therefore more reasonable that the other person pay. "Act of god" or not, if the OP didn't have that tree, it wouldn't have fallen on the tenant's car.
Let's suppose a motorist loses control of his or her car, through no fault of the OP, and runs into the same tree, suffering serious bodily injuries. Should the OP also be responsible for those injuries? After all, if the OP didn't have that tree, then the motorist couldn't have run into it.

Regardless of how you answer this question, the fact is that American jurisprudence has not held a property owner liable in these circumstances in the absence of negligence.

Last edited by Febs; 06-28-09 at 11:49 AM.
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Old 06-28-09, 12:07 PM
  #143  
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It is not known if the storm caused the limb to start coming loose. Right now that is only speculation. I don't even know how bad the storm was, wasn't even in the state of Iowa when it happened.
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Old 06-28-09, 12:10 PM
  #144  
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Originally Posted by Febs View Post
Let's suppose a motorist loses control of his or her car, through no fault of the OP, and runs into the same tree, suffering serious bodily injuries. Should the OP also be responsible for those injuries? After all, if the OP didn't have that tree, then the motorist couldn't have run into it.

Regardless of how you answer this question, the fact is that American jurisprudence has not held a property owner liable in these circumstances in the absence of negligence.
If that happened then the motorist would likely hit my house if the tree were not there, depending upon what angle the car is coming from. So then could the motorist sue me for injuries and damages because my house is sitting where it is and has been for 60+ years? After all if my house was not built on this location 60+ years ago then the motorist would never have hit it.
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Old 06-28-09, 05:31 PM
  #145  
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Originally Posted by lauren View Post
She shouldn't own a car in the first place though! I mean, what if the OP is running from his house while it's on fire and runs into her car? Shouldn't she be responsible for his injuries because it's her property that hurt him? Same logic.
Absolutely not the same logic because in the real story here, the OP's tree was growing over the property next door where the girl had every right to park. That's why I'd personally feel I should share in the repair costs: if i'd kept my trees on my property, the girl's car wouldn't have been damaged.
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Old 06-28-09, 07:07 PM
  #146  
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Originally Posted by Square & Compas View Post
For those here that think I ought to settle and pay out of my pocket, forget about it and get over yourselves. It isn't going to happen! I don't know what else I can say to convince you of that. I am standing my ground here, both with her and you. You'll never going to convince me otherwise, so give it up. What some of you think if you say I ought to pay her out of pocket and settle with her out of court enough times I'll go ahead and do it? Wrong!!! If anything it will cause me to just dig my heels in even deeper and stick to my guns even more! But if you think you can convince me, well take your best shot, but you're gonna be disappointed.
Dude, step away from the bong. Nobody really cares what you do or don't do...you're the one who felt compelled to get opinions...if you didn't want to hear them, why did you bother?

The old N_C is showing again...remember what happened to him.
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Old 06-28-09, 08:05 PM
  #147  
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Originally Posted by pacificaslim View Post
Sure. Except she was parked in the driveway, minding her own business, and then her property was damaged by someone else's property and it is therefore more reasonable that the other person pay. "Act of god" or not, if the OP didn't have that tree, it wouldn't have fallen on the tenant's car.
I really wish that was true.

By that logic, since the federal government owns all wildlife, when I hit a deer while driving along, minding my own business, I should be able to sue the fed for not keeping their deer off the roads. Since that's not gonna happen, I carry a comprehensive insurance policy to cover myself in case I do collide with wildlife, catch a piece of gravel in the windshield, a driverless shopping cart gets blown into me from across a parking lot, etc.
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Old 06-28-09, 08:11 PM
  #148  
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Originally Posted by Square & Compas View Post
For those here that think I ought to settle and pay out of my pocket, forget about it and get over yourselves. It isn't going to happen! I don't know what else I can say to convince you of that. I am standing my ground here, both with her and you. You'll never going to convince me otherwise, so give it up. What some of you think if you say I ought to pay her out of pocket and settle with her out of court enough times I'll go ahead and do it? Wrong!!! If anything it will cause me to just dig my heels in even deeper and stick to my guns even more! But if you think you can convince me, well take your best shot, but you're gonna be disappointed.

Wow, you sound like a teenage girl! This is hilarious.
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Old 06-28-09, 10:34 PM
  #149  
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Originally Posted by chipcom View Post
The old N_C is showing again...remember what happened to him.
Wow, that's exactly what I thought reading this thread! Same member with a new name?
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Old 07-01-09, 02:20 PM
  #150  
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As a landlord, i encounter tenants who believe i'm their mommy and i'm responsible for insuring them against life's little tribulations. I tell tenants that I have insurance which covers the building only, and i urge them to purchase renter's insurance. They almost never do.

Occasionally life happens and a tenant gets the idea that they can intimidate me into paying their way through life by threatening a lawsuit. My normal response is to shrug, and tell them i'll see them in court. They rarely follow through.

I'm glad you are standing your ground against the entitlement crowd. Good luck!

Last edited by icebiker76; 07-02-09 at 12:01 PM.
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