Tree Preservation: Different Things to Different People

Insurance, Legal
Tree preservation: Different things to different people. If you are a builder or a developer, tree preservation pretty much equates to not knocking the tree down during development. If you are a homeowner, then tree preservation takes on a more feng shui application. The utility of doing it well, doing what’s right, and doing it organically without chemicals is almost always in a homeowner’s mind. However, the common denominator of tree preservation, regardless of who you are, is rooted first in safety. Is the tree worth saving? Not all trees can or even should be saved. To that end comes a plethora of rules and standards that govern your conduct. If you are seeking the advice of an arborist or horticulturalist who does not first and foremost address the issue…
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Taking the Mystery Out of Tree and Landscape Claims

Insurance, Legal
Taking the mystery out of tree and landscape claims can be difficult! If you have had a tree or landscape claim come across your desk, you know the empty feeling associated with wondering just how the matter will be resolved. If only it were a car or a home, life would be so much easier. After all, those types of claims have a blueprint that can be followed to resolution. You always strive to be fair and honest with your determinations. But trees and landscapes? You simply don’t know where to begin. You either approve the claim based upon the provided information, ask for more information, give the claim to someone else, or place it at the bottom of your stack of claims hoping it will somehow disappear. But, it…
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A Misunderstood Common Law Privilege

Insurance, Legal
There is a misunderstood common law privilege that permits a landowner to cut encroaching tree and plant parts extending onto and into his property from a neighbor’s property. However, that action does not extend to conduct causing damage to the neighboring property. There is a privilege, but it is not absolute. The privilege is not positively accorded to a neighbor seeking relief from joining tree and plant problems. Sometimes the privilege works. Sometimes it is not applicable. One of the most difficult problems or questions in the urban marketplace for both arborists and government representatives is the issue of neighbor law. Of those difficult questions comes first and foremost, who owns the tree? Once ownership has been identified, the next pressing issue is the authority to prune or mitigate the…
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Insurance Think Tanks and Mr. Big: Reduction of Risk

Insurance
Somewhere on the penthouse floor of a gigantic insurance Think Tank sat Mr. Big. He had a grand idea. If the insurance risk of failing trees or tree parts could be eliminated, so would the wrongful death and personal injury cases his company and other insurance companies were paying out in claims. Trees falling onto homes and offices were in that mix as well. And don’t forget damages to automobiles, both moving and parked. There is, after all, no such thing as a perfectly safe tree, especially in our urban forests. Out went the edict: “Dear Insured, remove all the branches over your roof or we won’t insure you.” Problem solved. A promotion for Mr. Big to whatever floor is above the penthouse floor. In came the questions to me…
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Tree Codes: Death, Injuries and Unintended Consequences.

Insurance, Legal
Tree codes: death, injuries, and unintended consequences are a fact of life for arborists! I can recall to this day precisely where I was and what I was doing when I first heard the news. Unbelievable as it was. Stunned. Intellectually frozen in my thinking. The government was going to require that a permit be obtained to cut down my own tree. On my own property. And I had to pay for a replacement whether I planted another tree or not. My own property. My own tree. The tree I owned. The tree I may have planted. The tree that may have been dangerous. I needed permission to remove it. And I needed to get out my checkbook to boot. True, developers had been clear-cutting land for years. Thousands of…
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The Bill of Rights: Valuation vs Land Use

Insurance, Legal
The Bill of Rights: Valuation vs Land Use Few of us have read the U.S. Bill of Rights, which is quite understandable. However, the last 12 words of Article 5 have shaped our nation and introduced a niche legal area of the law known as condemnation or eminent domain. “… Nor shall private property be taken for public use, without just compensation.” We have forgotten that our ancestors were routinely forced out of their homes and businesses by their landlord and our now good friend, England. Routinely. Imagine a knock on your business door.  There are armed soldiers telling you to gather your belongings and get out as they are going to take your property for their use and comfort. No compensation. No appeal. No warning. Get out. Now. The…
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Tree Failures and Wrongful Death Claims

Insurance, Legal
Tree failures and wrongful death and landscape claims typically fall into the category of valuations. A tree or landscape was damaged, and somebody wants to be paid. And there is much to be considered regarding the valuation of trees and landscapes, which goes to a different level if the tree failure caused personal injury or death. Then the ground rules change. Obviously, much more is now at stake for both the insured, the claimant, and of course the person or entity responsible for paying alleged damages. When wrongful death or personal injury claims caused by tree failures come to your desk, there are many considerations to be contemplated, one of which is “Who owns the tree?” Other considerations evolve about whether the tree failure could have been prevented; was the…
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Who’s Cheating Their Insurance Company?

Insurance
Who's cheating their insurance company? There are abuses on both sides of the insurance cheating issue. There are high-profile attorneys with great expertise in detecting fraud. These attorneys regularly post on LinkedIn verdicts that they received from a jury, verdicts that far exceeded the original claim in many instances. There are insurance companies whose attorneys also win big cases against people who fraudulently file an insurance claim. There are indeed legitimate claims to be made on both sides of the cheating issue. But it’s not the big guys, the master planners whose blueprint is to deceive, that cause the egregious overpayment of claims. Nope. It’s the little guy. You know, like your neighbor. They have all sorts of justifications for cheating. It’s not really cheating after all. It’s a partial…
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Good Fences Make Good Neighbors. Trees and Neighbor Disputes.

Insurance, Legal
As the old saying goes, good fences make good neighbors. I’m not an attorney and certainly not qualified to give legal advice. However, after scores of litigated cases where I served as an expert witness, I can offer some significant take-home lessons for anyone involved with a neighbor who is a poor steward of their trees, causing you a nightmare of possible consequences as a result. The first issue regarding trees and neighbors is always reduced to who owns the tree. At the simplest level, with one tree and two neighbors, the land on which the trunk is wholly located is always the owner of the tree. If the trunk stands partially on the land of two or more people, then the tree typically belongs to all property owners in…
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Failed Tree Liability

Insurance, Legal
Is the Whole Always the Sum of its Parts? The “Green Industry” is governed by the American National Standards Institute (ANSI A300). The Standards consist of 10 Parts that cover the various categories of work and provide for certain standards in the writing of specifications and performance. This of course affects where liability lies for a failed tree. The question becomes: Are these Standards separate and apart from one another or is there one Standard with 10 Parts? This question is central to the matter at hand. A man standing near a tree dies instantly when a limb fails and kills him. Negligence or an accident? Perhaps an Act of God? Was the  failure covered by insurance or did a preexisting tree condition exempt coverage? There are many instances where…
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