Liability Insurance Protection

[Guy Meilleur]

3 years ago a landscraper topped 7 sugarmaples and they died. Owners sued, and the case settled this morning after the jury was selected. Some notes:

Liability ins does not protect against malpractice. The treecudder still can be exposed to damages not covered by ins.

Consulting is scarier than other treework. I was ready to testify as the expert witness, and psyched to defend some aspects of my appraisal report, like a 100% Species Rating, that looked vulnerable. Much more adrenaline pumping than from limbwalking etc.

Depositions count. I've given 7 now, and all 7 cases settled before trial. Relieved I didn't get attacked in court, but much more regretful that I missed the chance to score some points there too, and to get experience in court as an expert.

Consultants count. Unlike many, the lawyer in this case was no dim bulb--summa cum laude from Harvard--but the appraisal report carried much of the case.

Consulting is fun. After a couple decades of learning and experience, arborists should consider selling their opinions.

Toppers and other treerapers can and should be made to pay. Tree owners need not feel intimidated if they have arborists' support.

OK back to work now.

 

[Ax-man]

Guy,

Have a couple of questions???

Was ins. not provided because the landscaper didn't have what is called " completed operations " in his policy. Our ins. has this to cover us in case a tree fails for whatever reason after we have done work on it. It covers us for a reasonable time period, not forever of course.

Was this landscaper doing work that was ouside the realm of his normal work. In other words did he cross the line between doing landscaping work, into doing tree work or in this case tree care and just wasn't covered for this.

Do you mind sharing the fines or cost of the settlement?? If not I understand why..

Larry

 

[NebClimber]

A commercial liability policy generally will not cover defects to the work itself. For example, if you build a house and the roof collapses, no coverage. If the roof hits someone, then there is coverage.

The difference is that insurance is not a guarantor of you work product.

Another example: Husqvarna sells a chain saw and it doesn't work. This is not an insurance issue (its a contractual issue). If the saw malfunctions and kills some one, then you have an insurance issue.

The case of a tree cutter's work actually killing a tree raises an interesting issue. An insurance policy does not guarantee that a tree cutter will properly trim a tree. I.e., the policy does not guarantee the work product. But in this case, the improper pruning caused damage to something else - the tree. And the injury techinically is not premised on breach of contract for providing a bad trim job. The injury is based on tort law, for killing a tree, not matter how proper the pruning itself may or may not have been. Thus, it seems a strong argument for coverage could have been made.

So this begs the question , which lawyer went to Harvard, the defendant's or the plaintiffs?

Steven

 

[Guy Meilleur]

Originally posted by TreeCo
I feel pretty sure Guy and the Havard Lawyer were both working for the plantiff.

True.

"Do you mind sharing the fines or cost of the settlement?? If not I understand why.."

I would if I knew. Lawyers and clients are typically not real open about $$, but I hope to learn more after all is said and done. Ins coverage is a separate suit and not resolved yet.

"Was this landscaper doing work that was ouside the realm of his normal work."

Yes, he'd expanded his services and his yp ad; that's how he got the job, way over his head it seems.

" completed operations " in his policy. Our ins. has this to cover us in case a tree fails for whatever reason "

An interesting type of clause--Steven, is this common? In this case the trees were topped in August and were clearly dead only after they didn't leaf out the following year.

"insurance is not a guarantor of you work product."

I'm not sure about this--the contractor advertised himself as a professional then did very substandard work; this was one point of the legal attack but I'm not fully informed on how much this point carried the claim.
Talk about complicated...

 

[NebClimber]

Completed operations coverage provides coverage for damages arising from a product or service after the service has been rendered or the product delivered. At one point in insurance history I assume damages arising from "completed operations" were excluded. After all, what insurance company wants to provide coverage from now until eternity on a product introduced into the stream of commerce. But now completed operations are written into standard form CGL policies. (The "ISO", an institute funded by insurance companies to draft uniform insurance policies, adopted a uniform CGL policy that includes completed operations as a default). In a run of the mill policy, completed ops will be covered for 1 year.

On another point, insurance is not a guarantor of you work product. The idea that the treecutter advertised himself as an expert is relevant in the sense that it informs what "standard of care" he will be held to. Had he told the homeowner he had no idea what he was doing - but would take a shot a cutting the tops out for them - then he might not be held to the standard of an "expert", on whom the homeowner relied.

Guy, you've kinda got me remembering those parts of my former profession that I enjoyed. On the other hand, these trees were topped 3 YEARS AGO. And, although you were juiced for trial, it never happened. Now imagine the hours off tedium that everyone put into this case just to position it for settlement.

Steven