Homeowner wants HOA to pay deductible and car rental

Jackie:

I guess my question is why isn't the HOA liable? Was this an act of God or were the branches in question in need of trimming that didn't get done in a timely fashion?

I don't believe you can stop her from submitting a claim, it is up to the insurance company to decide who is liable no the board.

JackieB - It seems it's the deductible that needs to be paid. If that's the case the owner's insurance company paying all but the deductive is not an admission that your HOA is not liable. Seems to me the claim should be submitted by the car's owner (or owner's ins. co) to the association's insurance to seek payment. It's up to the association's insurance co. to determine if payment will be accepted or denied.

JackieB - If you are on the Board and authorized to do so, you should contact your association's insurance company, give the details and ask who is liable? I'd be curious what the insurance company has to say.

"Tree branches fell from a maintained community tree"

YOUR tree, YOUR responsiblity.

JackieB: The tree belongs to the Association, and due to high winds,
the branches damaged a unit owner's car. On what basis do you 'know' the assn. is not liable for the repair costs? Has the Board contacted the Assn.'s insurance company to learn if indeed the Assn. is covered for this type of liability?

Association liability insurance is a hot topic and of interest to all posters here.

The car owner(not me)dealt with her insurance. They paid the claim less her deductible, car rental, and other mechanical stuff. Her insurance never contacted
our insurance because the tree was in great shape, annually pruned and no sign
of weak branches. We had taken tons of photos before we removed the branches so
the owner could show her insurance company. The owner was on vacation, out of town. CA has Stirling-Davis act that clarifies most of CA law with HOA's/condos
etc. Our PM might have called her insurance......but I doubt it.

Susan - With All due respect, where do you get your information? Are you an insurance professional? Liability is based on the negligence per se and it also may depend on whether the state is using the contributory, or comparative negligence doctrine. (They also could be no fault). Negligence is defined more or less as "What would the reasonable, prudent person do or not do, in the same or similar situation? Then you have bailee considerations, care, custody and control...etc. but the bottom line is this. If the association trimmed the tree and no one knew that there was a broken branch or undesirable condition, then why would the association be held liable for damages? ... Stuff happens and that's why you have insurance.

No way Paul! Just because it's the Homeowner's tree or the Hoa's tree, it doesn't mean that the Homeowner or HOA is liable for damages. If a tree on may property was dead or had dead branches and you had come to me and said.. Hey Mike, doesn't that tree look dead to you and I said, 'Yeah, I had a tree surgeon check it out last year, and the professional from the tree company said, Yep-That tree is a gonner and it's going to fall in a good stiff wind". But then I also said that I've been too darn cheap to take care of this because they want too much money. Now if the tree damages the car, there I'm probably going to be liable for damages because I failed to act on this. If the tree was in great shape and then Lightning hits the tree so that it falls on the car, then Oh Well.. Too Bad... There's no liability in that later case here. This is all based on civil law and the negligence doctrine. Hasn't anyone been on a jury in a civil case before. ..or aren't there any old insurance Claims adjusters or sales agents like me out there? Oh well.

JackieB - The beat, or debate in this case, goes on. However I think you are on track in just letting the HOA insurance co be the bad guy, or simply make the professional determination based on your states laws. It's clear to me that MikeS is very well versed in the insurance in's and out's and is offering you, at the very least, excellent food for thought.

Just one more tidbit and I'll shutup here. No one can prevent the claimant or plaintiff from filing a claim against the HOA's insurance company. Anyone can sue anyone (with or without grounds) and anyone can file a claim against the HOA's insurance company and the HOA cannot stop them. If I wish to take and file suit against the HOA for damages or file a claim against them, it's not a problem. It wouldn't be hard to find out who the insurance carrier actually is and just file a claim against the HOA, or you could always go the small claims route. If a claim for damages is presented to the insurance carrier they must investigate the claim, analyze liability, make a liability decision and notify the 3rd party claimant in writing as to their decision. In most states, it's also illegal for the 3rd party claimant to refuse to take the claim and just tell you to use your first party carrier. We did have some smaller companies that used to control their admin costs in this manner, and that's why Virginia passed the unfair claims act of 1978 details this last issue.

Jackie,

A couple of thoughts. First, talk with your insurance broker/agent to see what their opinion is on whether the HOA insurance policy would cover the repairs or if Santa Ana winds are an "act of God" that are excluded. You should also ask what the claim may do may do to your insurance premiums over the several years.

If the insurance would pay for it, then decide if you even want to file the claim with your insurance company. The HOA probably has a deductible for it's policy, so you may be paying a thousand dollars anyway out of the HOAs funds to cover the deductible.

If your insurance agent says your premiums may go up 300 per year for the next several years due to the claim, then it might be cheaper overall to just pay the entire amount from the HOA funds and not file any insurnce claim.

Here is the summary that I promised to share.
Jackie
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We spoke with our HOA insurer, and he confirmed that this does not look like a claim the HOA should cover.

First, he confirms that limb fall from trees in a wind storm is considered an act of nature and is not normally a matter for which the tree owner is liable. “That’s why you have insurance.” (There has to be evidence of negligence on the part of the tree owner: this means a visual inspection from the ground would have shown dead or diseased limbs, but the HOA did nothing to remedy the problem. That wasn’t the case here.)

Second, he notes that if the homeowner’s insurer thought the HOA was liable, they would have subrogated the claim immediately—that is, her insurer would have contacted the management company and the insurer directly. They have not done so, he notes, and he says that this is because her insurer knows there is no basis for a claim against the HOA. That’s why her insurer paid the claim.

Third, there is no basis whatsoever for the HOA to pay her deductible. That’s just a fundamental misunderstanding of what a deductible is. The entire concept of a deductible only applies when your own insurer is paying the claim, and you agreed to pay part of the dollar value of the claim yourself in order to receive reduced premiums. By definition, a deductible only exists when someone else is NOT responsible. If the HOA were responsible, it would owe the full dollar amount and the concept of deductible would have no application. As a matter of law, nobody is ever liable for anybody else’s deductible, because if somebody else is liable, there is no deductible.

Fourth, as with the deductible, the costs of a rental car are a function of who is liable. If her insurer pays the claim and does not seek subrogation, then the HOA is not liable for any amount. If she elected not to have rental car coverage as part of her policy, then the insurer won’t cover the costs of the rental. But that in no way creates liability for someone else; it’s just a matter between her and her insurance company.

Finally, he says there’s not enough information to understand why there is a supplemental amount which she claims was not paid by her insurer (though the existing documents don’t actually make it clear that the insurer didn’t pay the supplemental amount). In any event, it’s a dispute between her and her insurer, not something to be taken up separately with the HOA.