a tree fell on a person's car at my motel

[florence]

I own a motel. One windy day a tree fell on a tenant's car, which was parked in my parking lot. I feel this was not my fault, but an unexpected accident. I have a $250.00 deductible. There is a 2inch scratch in the guys car. My insurance sent an adjuster to look at damage. He says $500.00. The tenant got 2 estimates of $1,200. & $1,400. So he wants the company that is charging $1,400.00 to fix it. He has served me papers to go to small claims court & now wants $1,600.00 HELP? Do I pay only the deductible? What about his own car insurance?

 

[Tracey]

Hand this one off to your ins. co. You'll want to crossclaim against them. (This may take the case out of small claims court, which you definitely want, since the law's on your side but sympathy's with him.)

Your ins. may also be obligated to provide you with your own attorney (I think it's called cumis counsel). What the adjuster thought is irrelevant, unless the insurance co. can prove that the car owner is demanding too much repair (Painting entire car because otherwise the paint on the door will look 'different.')

You'll have to pay the deductible anyway. His insurance may also get in on the fight, if your ins. claims that his comprehensive coverage should apply.

Turn this into a battle between the insurance companies and get out of the way.

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This is not legal advice and you are not my client. Double check everything with your own attorney and your state's laws.

 

[I AM ALWAYS LIABLE]

<BLOCKQUOTE><font size="1" face="Arial, Helvetica, Verdana">quote:</font><HR>Originally posted by florence:
I own a motel. One windy day a tree fell on a tenant's car, which was parked in my parking lot. I feel this was not my fault, but an unexpected accident. I have a $250.00 deductible. There is a 2inch scratch in the guys car. My insurance sent an adjuster to look at damage. He says $500.00. The tenant got 2 estimates of $1,200. & $1,400. So he wants the company that is charging $1,400.00 to fix it. He has served me papers to go to small claims court & now wants $1,600.00 HELP? Do I pay only the deductible? What about his own car insurance?<HR></BLOCKQUOTE>


My response:

He'll have to prove you had "Notice" that there was a problem with the tree; e.g., that you knew, upon inspection of the tree, or that someone told you, that the tree was causing a dangerous condition of your property. If he can't do that, he loses.

In the absense of "Notice", this would be termed as an "act of God" - - and no one is responsible for such acts.

Turn the claim over to your insurance company. His damages are measured as the LOWEST of all estimates - - not the highest as he is claiming. If your business is a corporation, then your insurance company can send one of its attorneys into to court to defend the lawsuit. If not, your insurance company owes you a conference with their attorney to show you how to defend yourself in court.

Cumis Counsel comes into consideration when there is a conflict of interest between the insured and the insurance company. Apart from the insurance company's defense attorney's obligations in the face of a conflict of interest, the insurer, in satisfying its duty to defend the insured, may have an obligation to allow "independent" defense counsel to represent the insured at insurer expense. This so-called "Cumis counsel" obligation had its genesis in case law (San Diego Navy Fed. Credit Union v. Cumis Ins. Society, Inc. (1984) 162 Cal.App.3d 358, 375, 208 Cal.Rptr. 494, 506; see also Executive Aviation, Inc. v. National Ins. Underwriters (1971) 16 Cal.App.3d 799, 809, 94 Cal.Rptr. 347, 354); but the obligation is now subject to statutory guidelines.

IAAL




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