If a tree fell in the woods, would an insurance agent hear it?
It is an amazing phenomenon to observe from afar. Extremely intelligent and well-versed insurance professionals handling claims become immobile when a tree or landscape issue comes before them. Their eyes glaze over. Their right hand goes to their chin. Their eyebrows rise. They ponder, what to do? Given that the tree or landscape did not kill or injure someone (which is an entirely different matter altogether), the agent is left with the task of paying the claim, denying it, or attempting to seek help in the marketplace to verify the casualty opinion of value. Claims sit on a desk for a year or more because the agent is frozen in a state of confusion. Resentment from the insured rises as his claim is not paid. The company name becomes tarnished.
An attorney for whom I had a great deal of respect and confidence once told me never to use a simile in the courtroom or deposition. The attorney across from me is too well trained to not turn that simile around on me. I don’t know if she was correct or not. But I had a huge respect for her and have never used a simile since that time.
Let us assume that the claim in front of you is not for a tree or landscape but for a car. Now, you feel much more comfortable. Now you are in control. You’ve got rules and well-published documentation on how to conduct yourself. Well, you also have that same documentation for the valuation of a tree or landscape.
In its most basic components, damage to a car is broken down into 1 of 3 parts: One, the car is totaled. Two, the car has been damaged but can be repaired. And three, perhaps there may be a clause that affords the insured the use of a rental car, albeit, for a brief period of time.
As to the totaled car, you have published references to discover the value of that car. Among considerations taken into account are the make, model, year, accessories, condition of cleanliness, and mileage the car had on it the moment before it became a total loss. These items are diminutions of value. There are even books that tell you the value of the car. In the world of appraisals, this is called a Replacement Cost Method, albeit depreciated.
There are books that demonstrate the value of trees. There are recognized formulas, as well, to determine the value of a tree. And, just like a car, there are the make, model, year, accessories, condition, and mileage to consider as a diminution in value. Very straightforward. Perhaps not as understandable as a Kelly Blue Book but nonetheless as effective in demonstrating you have provided just compensation for the lost tree or landscape.
As to the cost-of-repair approach to valuation, in many instances trees can be repaired just like a car. Not all damage to trees and landscapes is irreparable. And the approaches to repairing damage to trees include a multiplicity of approaches. However, the take-home lesson to you is that trees and landscapes can be repaired.
As to the loaner car, this is a Cure Cost. The insured is temporarily being cured from a loss of mobility by the use of a rental car until his car is repaired or replaced. The function or other attributes of a damaged or dead tree may also be cured.
Of course, there is the consideration of duty. Was there a duty to inspect the tree in the environment in which it grew before it failed or otherwise became a loss? Were there pre-existing conditions that predispose the tree to failure? Were there pre-existing conditions that would diminish the tree’s value? All of these components weigh heavily in the valuation of a tree or landscape casualty loss. In most all scenarios, the diminution of value is significantly high.
Was it an act of God? Probably not. Of course, there are those vicissitudes in weather events that are catastrophic. That speaks to itself. But trees do not just stand up and fall down without warning. These warning signs are typically detectable during the duty to inspect their condition in an area that is target-rich with people, cars, homes, or other property.
Appraising the value of trees and landscapes in a casualty claim is quite straightforward. A high percentage of appraisal components, leading to diminution of value, can be detected from photographs. There’s no need for a site inspection in all cases. In fact, in most cases a site inspection is not necessary. In many other cases, the tree or landscape has already been removed or replaced by the time you get the claim. Good photographs in the before situation of the casualty most always demonstrate a sound platform upon which to stand in explaining to the insured, or defending in court, the diminution of value in his claim.
The articles presented here do not make any legal recommendations or representations, as the author is not qualified to do so. These articles are for educational and entertainment purposes only. Seek the advice of a qualified attorney regarding questions of law.