Liability Issue

[Rick D]

I am very interested in this issue because there are many large trees in our neighborhood. My insurance company has assured me that with tree damage losses the bill is paid by the insurance company of the home owner suffering the loss, regardless of where the tree originally stood. Obviously I suspect that were there foul play involved, there may be other considerations.

Three decades ago in California, the typical case was that the damage to the neighboring house would be covered by the neighbor's insurance company, less their deductible. Then the insurance company would look to you to see if there was something you should have done (in ordinary care) to prevent it. IE, was it diseased, properly trimmed, etc. If so, they would attempt to collect back from you (typically via your insurance company) through a process called subrogation. If the neighbor's insurance company was successful, they would also get back the deductible and refund your neighbor. If the two companies differed in their assessment of responsibility, they might arbitrate the matter. Or, the neighbor could file a claim directly against you if they wished. Your insurance company would defend you if they believed your did nothing wrong. Then your neighbor could file a lawsuit vs. you or take you to small claims. In small claims, there are sometimes some odd results; so too even in regular court proceedings. It would be up to your insurance company to decide how seep to defend your vs. that uncertainty.

 

[dlochner]

Last year, while visiting my childhood home in Hawai'i I remarked that the coconut trees had grown quite tall. The current owner told a story about the neighbor who informed him that the coconuts needed to be harvested soon, or he (or his insurance company) would be buying a new roof for her house. Not harvesting the coconuts would be negligent with the home owner being responsible.

I wonder which company denied the OP's claim?

 

[Head Sail]

So if the wind blows a tree, that was healthy and growing on my property, onto my neighbors house my insurance won't be responsible? That would be an act of god right?

The difference between what you describe and the OP is that a tree is a natural object, as is the wind. A boat tied to a mooring is a man made object that came loose due to fault of another. The boat was either improperly tied to the mooring or the mooring requirements were not sufficient. The other boat caused the damage to his boat not a tree.
We are only hearing one side of this story. I'd like to get the offending boat owners take on this. OP, maybe you can have him join the conversation if your still paying attention to this thread.
Another consideration is the swing zone of each of the boats. Can it be demonstrated that the other boat was beyond the approved swing zone of the mooring? If not, the other party may claim your boat hit his.

 

[thetone]

The other boat dragged its mooring about 100 yards across the harbor. I'm waiting for the survey and estimate before I contact the owner.

 

[reworb]

I like to read threads such as this, as I am an attorney and I hate to see so much misinformation being thrown around.

First off almost all liability issues are governed by state law, that law that varies from state, there are basic legal principles but even these can be affected by the nuances of state law.

As a basic principle unless you are engaged in an inherently dangerous activity if you or your property causes damage the injured party must prove negligence (i.e. you didn't act a reasonable and prudent manner) if you fail to show the other party was negligent then you will NOT recover no matter what your damages are.

Inherently dangerous activities are things such as blasting, pile driving et al if you cause damage you will have to pay no matter the amount of care you took.

Many states have no-fault laws for automobiles accidents but those law are generally limited to autos and may or may not cover all damages. Never heard of no fault boating laws

Depending upon the state you may or may not be able to proceed directly against the insurance company for alleged at fault party, this is called a direct right of action. Sure companies may deal with you as it more expeditious (cut out the middle man) but in a state that does not have a direct right of action you can not sue the insurance company you can only sue the party you think is at fault. In any event the policyholder must be liable to you under some legal theory before the company will be obligated to pay you, general speaking negligence

Trees are generally governed by these same legal principles. Never a particularly good idea to rely on on insurance companies for legal advise, in my experience it is often wrong. A boat crashing into yours is NOT an act of god. Acts of god are things like volcanos and the storm itself.

Sorry for the long non boating post but these questions seem to reoccur with all the same type of comments some of which are correct and some of which are wrong and some fail to address variances in state law. Finally if you can not eat a total loss and buy yourself anther boat don't buy just liability insurance.

 

[Head Sail]

The other boat dragged its mooring about 100 yards across the harbor. I'm waiting for the survey and estimate before I contact the owner.

If you don't already have, photos of the other boat clearly outside it's swing zone will help your case. Also, you really should not make any assumptions as to why his boat hit yours. All you really know is that his (or her) boat hit yours while your boat was within it's swing zone.

 

[thetone]

I was not carrying physical damage coverage because I couldn't get it without a survey. I was in the process of fixing everything on the boat prior to getting the survey when this happened.

 

[dlochner]

As a basic principle unless you are engaged in an inherently dangerous activity if you or your property causes damage the injured party must prove negligence (i.e. you didn't act a reasonable and prudent manner) if you fail to show the other party was negligent then you will NOT recover no matter what your damages are.

This seems to be the crux of this event. A boat drug it mooring and struck another boat. The claim was denied because the owner was not negligent in maintaining his mooring and had it recently inspected. The mooring failed, not because of something the owner did or didn't do, but because a storm caused the mooring to become dislodged resulting it dragging across the harbor.

 

[dlochner]

I was not carrying physical damage coverage because I couldn't get it without a survey. I was in the process of fixing everything on the boat prior to getting the survey when this happened.

That really sucks!

Have you looked at your homeowners policy? I have an old Flying Scot when I talked to my insurance company (USAA) they said the homeowners policy would cover any liability issues and cover the boat unto about $2K without adding a rider. Might be worth a call. Then you can subrogate the claim to them and they will argue with the other insurance company.

 

[jssailem]

A boat crashing into yours is NOT an act of god.

So the boat coming loose from it’s mooring may or may not be an act of god, but the boat crashing into the OP’s boat while cruising on it’s own is not an Act of God. Is that correct?

 

[jssailem]

One thing that has not been discussed, does the OP need to file a report with the State?
http://www.dem.ri.gov/programs/bnatres/enforce/pdfs/boatacc.pdf
It states “accident” and more than total damage of $2,000 all boats. I have always filed a report. It helps to identify the events. Better the events being described by me than someone else. File report with local police or sheriff. If they find it not in their area of responsibility they’ll likely advise who is the correct agency.

 

[reworb]

So the boat coming loose from it’s mooring may or may not be an act of god, but the boat crashing into the OP’s boat while cruising on it’s own is not an Act of God. Is that correct?

Not sure I understand your question. A boat coming loose from a mooring is not an act of god and neither is a boat crashing into yours an act of god. The classic example of an act of god is a volcano. If the act of god causes something to break loose and that something causes you harm that also is not an act of god. However the act of god event goes to the negligence standard of care. In an area that never sees certain events it would not be negligent not to take precaution against those events. On the the hand if those event have occurred before than it would be negligent not to take precaution against those events. This is all about the standard of care one must adhere to. Not really an act of god issue, act of god clauses really belongs in contract law and not in tort. It often gets confused as between the policy holder and the insurance company it is contract law that controls. Between the contracting parties acts of god are many times excluded. Check your Home Owners policy and you may see act of god exclusions not to harp on volcanoes but in most places if your house is destroyed by a volcano don't expect to see any money from the insurance company

 

[Rick486]

My sister is a tort lawyer with 30 years experience. Her advice to me has always been that you must remember that "....insurance companies are not in business to pay claims..."

 

[Head Sail]

So the boat coming loose from it’s mooring may or may not be an act of god, but the boat crashing into the OP’s boat while cruising on it’s own is not an Act of God. Is that correct?

Please no more "Act of God" nonsense. The insurance company isn't even claiming that. They claim he maintained his mooring properly. No one is disputing that. All anyone really knows is another boat hit his. Unless he was watching the incident occur, the OP doesn't even know if it was caused by the storm. Barring any evidence to the contrary, the other boat could have been at anchor, moved the mooring themselves, or tied to the wrong or unapproved buoy. Any number of reasons but not the concern of the OP. All he knows is another boat hit his.

 

[jssailem]

Head sail.. I agree with you and have said so earlier.. The question is in response to the statement by the attorney. I was trying to understand his point. We do not know if the OP watched the events or used some other way to identify the reason his boat was damaged. Seems to me that having too much information may work against you.
Why I suggested, as you do here, to go to the owner of the boat believed to have caused the damage with a quote for repair and ask “How do you plan to correct this problem caused by your boat?”

 

[dlochner]

Please no more "Act of God" nonsense. The insurance company isn't even claiming that. They claim he maintained his mooring properly. No one is disputing that. All anyone really knows is another boat hit his. Unless he was watching the incident occur, the OP doesn't even know if it was caused by the storm. Barring any evidence to the contrary, the other boat could have been at anchor, moved the mooring themselves, or tied to the wrong or unapproved buoy. Any number of reasons but not the concern of the OP. All he knows is another boat hit his.

The other boat dragged its mooring about 100 yards across the harbor. I'm waiting for the survey and estimate before I contact the owner.

Post #84: The boat dragged its mooring. In an earlier post, the OP mentioned that the mooring is now next to his. The boat did not separate from the mooring, the mooring failed to hold the boat in position. In the first post, the OP stated that this happened during a gale.

 

[jssailem]

Thank you Dave

 

[Head Sail]

Head sail.. I agree with you and have said so earlier.. The question is in response to the statement by the attorney. I was trying to understand his point. We do not know if the OP watched the events or used some other way to identify the reason his boat was damaged. Seems to me that having too much information may work against you.
Why I suggested, as you do here, to go to the owner of the boat believed to have caused the damage with a quote for repair and ask “How do you plan to correct this problem caused by your boat?”

Yes, to much talking and assumptions can work against you. Hopefully, this is all an academic discussion. It will likely be sorted out once the OP and other owner meet but it is good to consider how things would play out in court if it came to that. Insurance companies do not like to pay claims...some more than others. If an adversarial insurance company knows they are not dealing with a lawyer, they will deny the claim and not offer helpful advice in hopes you will just go away.
The OP should contact his insurance company also since none of us really know his policy. They may work with him to get resolution since he is a paying customer.

 

[jviss]

My boat was moored during a recent gale

What was the date of the event? Was thinking of checking the buoy data. I lost my solar panels in a recent gale, in September, but no one dragged, and I don't think it blew harder than 50 kt., and that, not for long. I'm not far from Bristol.

A gale is 7 through 10 on the Beaufort scale, so in the range of 28 to 55 kt. Not sure you meant the term precisely. Note it's not a 'storm' at that point, and while damage ashore can be expected at the high end, I wouldn't expect moorings to drag.

 

[Head Sail]

Post #84: The boat dragged its mooring. In an earlier post, the OP mentioned that the mooring is now next to his. The boat did not separate from the mooring, the mooring failed to hold the boat in position. In the first post, the OP stated that this happened during a gale.

Yes, all that is what the OP has said. I'm saying there are assumptions in those statements that have worked against the OP. He did not see the mooring weight drag unless he had scuba gear on and was watching it. He did not see it moving during the gale, nor does he know if the boat was secured to the mooring after the collision. All he knows is that the other boat hit his.