Damage done to electronic gate by local citizen

I am President of our HOA in a small rural community in Oregon. We have an electronic gate which was being built by a local fence company last winter. In Feb.2006, before the gate was completely finished, a local town drunk ran into our gate causing $5000.00 in damages. The fence company fixed the damage and completed the gate, absorbing the costs out of pocket. The county has tried him, found him guilty, and ordered him to pay restitution, but getting money out of this guy is going to be difficult. He claims he has no insurance, but he has a fairly new house and several vehicles. He is a self employed truck driver.
The fence company wants their money now. The court said they will make him pay restitution to our HOA since we own the property that was damaged. The fence company wants the HOA to pay upfront and get the money out of the local drunk whenever we can. The fence company says they will waive all late charges if we pay in the next 20 days.
I am at a loss as to what to do. We don't have the funds in our HOA bank account to pay this cost. What are our legal rights in this type of situation ? Could the fence company go after him and garnish wages (if he has any) ? Could the HOA legal put a lien on his home, trucks, posessions ? Any suggestions would be greatly appreciated.
Thank you,
Marsha

Hi Roger,
I have spoken to our insurance agent, but we did not have insurance on the gate and fence until AFTER the damage was done in Feb.
They are not liable for any of it because we weren't insured when the damage was done.
Are you saying our insurance company should pay for the costs and then when we get reimbursed we pay the ins. co back ?
Marsha

Hi William,
I understand your point and I agree that the HOA must pay the fence company, but I was hoping to get the money from the offender first. Our original agreement with the fence company was that - when we get the check from the offender, then we would hand it over. Now they want their money right now.
If he doesn't pay, what is our recourse ? Can the HOA put a lien on his home, garnish his wages (if he has any), make him sell something of value to pay us back ? The courts don't enforce civil monetary awards. I guess I see us being out this money with no way to recover any of it. If we get a loan, does the loan costs enter into it and does the offender have to pay "all" costs including any late fees, loan fees, etc ?
As you can see, I have more questions than answers.
Thank you.

Actually, I guess I need to explain further.
We didn't have HOA insurance because the gate was still being built and the project to build the gate and adjoining fencing was still between the developer and the fence company. I have no idea if the developer made the fence company show proof of insurance or not.

I got insurance on the gate, fence and our commmon areas as soon as the gate was completed. Had I know this local yocal was going to trespass, get drunk and damage our gate, I would have installed a bomb at the front of the gate to go off the minute it sensed him driving up to the gate! (Better than insurance !)No one can possibly know everything that might go wrong...

Also, I should have mentioned the trial taking place right now is the criminal trial between him and the county, not a civil trial. The DA's office says we can take this guy to court and bring a civil suit against him if we want or if we don't like the outcome of the restitution the judge may ask him to pay in the criminal sentencing.

Either way, the HOA had nothing to do with any of this and now we are the ones stuck holding the bag ! Isn't it a great world we live in where criminals get off and honest working people get to pay !
Thanks for your time and suggestions. It truly helps to talk to knowledgeable people about these situations. This is a great site - keep it going !
Regards,
Marsha

As Roger pointed out, I believe you first must determine who owned the gate at the time of the accident. If the developer still owned it, then you would have had no authority to hire a fence company. Hopefully the developer will look at your going ahead with the contract as a goodwill gesture and still live up to their responsibilities. (If they were responsible)

My suggestion is to go to the developer and ask them to take responsibility for the payment.

Very important is to keep an ongoing dialogue with the fence company, letting him know what you're doing at every stage.

If they refuse, then you need to get some documentation to prove who owned the gate and who was actually responsible for having the gate insured. Find out who the developers insurance agent or carrier is.

You should have documents from the developer turning over ownership of the gate to you.

If you did not own the fence at the time, then you could not enter into a contract with the fence company. However you did, and if you signed the contract then the fence contractor will come after you (the HOA).

If you do not have a civil judgement on the guy who damaged the gate, then you will not be able to collect anything from him. I thought you had said you had won a judgement. If he is found guilty during the criminal trial, then you can use that as a piece of evidence and file a civil suit. Since he was found guilty in a criminal case, it will be easier for him to be found guilty in a civil suit.

After you win the civil suit, the judge will award a dollar amount that should include reasonable attorney fees. You can ask the judge what avenues are available to collect. But probably the strongest is to put a lien on his house. Then he cannot sell the home until he pays you.

Normally you can add interest, at a rate the state law determines, from the day the judgement was entered into, until the day the judgement is paid. Each month you would send the man a professionally worded demand letter and showing the current interest amount added onto the last months balance. The balance will keep going higher each month.

You compute the interest on the principal (the court awarded amount) each month and add that. You don't add interest on top of interest. But first you have to have a court judgement.

If the maximum small claims court award is close to $5000 in your state, and if someone you know, who is not an attorney, unless he or she is a board member, is capable of presenting the evidence in a small claims court then that could be a fast and easy way to go, after he is found guilty in a criminal court. (A small claims court proceeding is not like what you see on Judge Judy.) In many states they will give you a lot of advice on how to prepare your case for the judge that will most likely handle your case.

Here is a timeline of events.

August 2005 - turnover meeting is held to turnover development to owners.

Jan. 2006 - gate construction is begun.

Feb. 2006 - gate is damaged by drunk driver

Mar. 2006 - gate is paid in full by developer.

So we really didn't own the gate during the time the damage was done. It belonged to the fence company and was under their control at that time.

Thanks William,
I agree, everything in writing is the best way to go and may help solve this issue, I hope, in the future.
Thanks again for the sound advice,
Marsha

I am going to follow Glen, but on a different tangent... Examine your insurance policy. Doesn't it cover property damage? If so, then the gate is property, built, completed, or in process. I can't imagine an insurance policy that insures walls, trees, land, etc., but neglects a specific item on that property.

So, if the developer had insurance on the property, then file a claim. If the HOA did, then file a claim. if no one did (ie, there was a gap in policies between developer and HOA), then live and learn, and pay the contractor for his work, and sue the pants off the criminal.