Question: It is alleged that our named insured owns property with a fig tree growing on it. The insured's neighbor noticed small trees sprouting onto his property beginning in the summer of 2016. After attempts to kill the small sprouting trees with no relief, the neighbor dug into his property and found that tree roots from the insured's fig tree have been growing into the neighbor's property, causing this condition. It is alleged that the condition has been worsening over time. The neighbor has concerns about further damage to his lawn as well as foundation, sewer lines and other structures on his property. The Erie policy says an "occurrence ... (is) an accident, including continuous or repeated exposure to the same general harmful conditions." Does the infiltration of tree roots from a tree on the insured's property to a neighbor's property over time, constitute an occurrence and thus, a duty to defend and indemnify the insured?

— Pennsylvania Subscriber

Answer: I'm looking at the ISO HO 00 03, which may be a little different than the Erie policy. "Property damage" is physical injury to, destruction of or loss of use of tangible property. I'm not sure that fig trees popping up in the neighbor's yard result in much property damage. Having said that, if the growth of the fig trees can be considered a harmful condition that damaged property, then the duty to defend would be triggered. However, the chance of the trees causing damage to the foundation or pipes is a future potential thing that can't be claimed until it occurs. The trees might cause foundation damage the way someone might win the lottery; the damage to the foundation may be more probable, but maybe not. A consultation with a horticulturist could be helpful. I'm not sure how much legal liability can be assigned to an individual for the spread of a tree; there is always Damage to Property of Others, which in the ISO form is $1,000. |

Earth movement caused by tree roots

Question: Our insured's detached garage has been damaged by a neighbor's tree roots. As you can imagine, this has been going on for some time. In 1990, our insured notified his neighbor (in writing) that the tree roots were encroaching and, as the tree has gotten substantially bigger since then, so have the roots. Now it is to the point where the garage floor and mortar joints have been cracked by the roots. Our insured has an HO 03 and has submitted a claim. The insurer, however, is denying the claim, stating that the roots caused the earth to move, and earth movement is excluded. We contend the damage was caused by the tree roots, which is covered, not earth movement. Can you help?

— Kentucky Subscriber

Answer: The HO 03 has no exclusion for tree-root induced damage. Arguing that the tree has caused the earth to move, and therefore the resulting damage is excluded, falls outside commonly held judicial opinion. Most courts hold with the opinion expressed by the Pennsylvania court in Rightly v. Lebanon Mutual Ins. Co. (79 Del 319, 1993 C.C.H.4097): "The Court finds that the earth movement exclusion applies only to spontaneous, natural, catastrophic earth movement and not movement brought about by other causes." In that case, paving vehicles traveling on a third party's drive adjacent to the insured's property caused vibrations that damaged the insured's home. In other words, earth movement induced by man-made means is covered. Your insured's neighbor's failure to act in allowing the tree roots to continue to grow, even after being told of the problem, is the man-made means by which this seemingly natural movement occurred. Therefore, there is coverage. |

Insured's tree damaged sidewalk

Question: We have a claim where a tree blown over by Hurricane Michael has damage a sidewalk. Is the damage caused by the tree covered? The policy is an HO policy. Coverage for trees, shrubs and other plants is limited to the following perils: fire, lightning, explosion, riot or civil commotion, aircraft, vehicles, VMM and theft.

— Texas Subscriber