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Who's liable?
Old 02-14-2019, 02:40 PM   #1
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Who's liable?

I'd like your thoughts on the following:
We keep our motorhome parked on family property nearby. The neighbor asked a family member for permission to have an old dead large hollow magnolia tree that is on the property line cut down. He agreed for her to cut it down. However she decided to burn some branches around the base of it first. The fire quickly got out of control and the tree started burning on the inside creating a very intense hot fire with lots of smoke and hot ashes. That day it was very windy and the wind was blowing the smoke and hot ashes towards my motorhome parked 30' away. When I got there that morning I moved it further away, I was immediately concerned of the tree falling closer to the motorhome and causing it to possibly catch fire. With 200 gallons of diesel and 16 gallons propane I felt it wise to move it.
Today, 2 weeks later, I noticed the paint is damaged on the rear and 1/2 of the passenger side which was closest to the tree. I contacted the company who painted the coach a few years ago and recently repaired and repainted the rear and showed them a picture. They said it appears to be heat related damage.
I would much rather file a claim on their insurance rather than mine.
To further complicate matters we will be leaving for an extended 6 month trip in the motorhome in May. The paint company I spoke to doesn't have any openings before then and said it would take 3-4 weeks to complete the repairs.
So my question is this: is the neighbor liable for the damage since they started the fire? I feel like their intention was not for this to happen but it could not have happened if they didn't start it.
The picture shows one area of the damage.
Let the ER court begin....
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Old 02-14-2019, 02:55 PM   #2
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Quote:
Originally Posted by folivier View Post
....So my question is this: is the neighbor liable for the damage since they started the fire? I feel like their intention was not for this to happen but it could not have happened if they didn't start it.
Let the ER court begin....
From what you described I would say yes.
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Old 02-14-2019, 02:59 PM   #3
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Interesting.

Did you neighbor violate any county/city laws by starting an open burn fire? It's not legal where i live, and even small recreational, or permitted fires obligate the initiator to have an extinguisher ready, so clearly this was a mistake.

I'm not sure what insurance this neighbor would have that might cover such actions, even if they were found liable? I doubt their own auto/homeowners would cover the actions they too, which resulted in damaged to other property? Never had to test a policy that way myself.

The other issue will be the time gap, and while it's likely the heat from the fire that caused the damage, you can't say for sure.

Is the tree in question considered on your family's property or the neighbor? While in layman's terms it might straddle the line, what would an insurer have said - who owns it? If it's on the family side, then I'd be less inclined to think the neighbor could file any claim without umbrella insurance or something.

So aside from whether insurance would pay, have you considered approaching the neighbor with your quote?

tl;dr: I think the neighbor is liable, I just question if the average homeowner policy would provide coverage for this event. So then you need to determine filing a claim on yours, vs. taking a neighbor to court (assuming asking nicely doesn't work).
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Old 02-14-2019, 03:10 PM   #4
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I also would say, yes. If it were me I would contact the neighbor and see where he stands on the issue. I then would take it from there.
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Old 02-14-2019, 03:16 PM   #5
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If the neighbor started the fire and the fire caused the damage, yes the neighbor could be held liable. But, keep in mind that liability is a debatable issue that often leads to legal disputes. While you do not want to turn this over to your insurance company, I would go that route and let them subrogate against the neighbor. Or, if the neighbor is willing to voluntarily pay, go that route.
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Old 02-14-2019, 03:20 PM   #6
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Ah, seems like a pretty simple law school essay to me.

The four elements that a plaintiff must prove to win a negligence suit are 1) Duty, 2) Breach, 3) Cause, and 4) Harm.

I am not a licensed attorney, so this is *not* legal advise but from the facts you put forth, sure seems like all the elements are met. If you were to seek damages in court, odds are you have plenty of time before the statute of limitations "run". But, if I was me...I would be sure to document the damage and get a couple of estimates before you hit the road. Have you discussed the damage w/ your neighbor?
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