New Hampshire Subscriber

A

The damage done by the insured's tree falling onto the neighbor's car is covered under the additional coverage of “damage to property of others,” found in section II of the homeowners policy. This coverage exists to maintain “good will” between the insured and his neighbor.

It does not matter that the insured was not negligent.  The coverage responds whether or not legal liability would attach.”

Also, you are correct. There is no “act of God” exclusion in the homeowners policy.

Editors' Note: The above exchange brought about several subscriber responses disagreeing with the editors' conclusion. Some of these responses are excerpted below, with comment by the answer's author.

From a California subscriber: I question your answer. The damage to property of others section specifically states that it must be damage caused by an insured person. In this scenario, the insured did not cause the storm, nor did he cause the tree limb to fall. Granted, an insurer can probably opt to use this coverage, but the incident should fit the conditions of coverage.

From an Ohio subscriber: I agree that section II additional coverages, damage to property of others, applies without regard to the insured's negligence. However, the loss has to be caused by the insured. You stated that heavy wet snow caused the limb to fall. Did the insured cause the heavy wet snow? Of course not. It is clear that the intent of the wording is to deal with losses in which the insured has a direct involvement, without the need to establish negligence. There is no intent to provide coverage where the insured is just a casual bystander.

This is a common coverage question faced by all agents. The clause is more trouble than it is worth, and I would prefer to see it eliminated.

From a Vermont Subscriber: The question of negligence is not relevant here, since we are discussing a coverage that does not hinge on negligence. The question is, simply, “Did the insured cause the loss?” I think not.

Black's Law Dictionary (5th ed., 1979) defines the noun “cause” as “each separate reason for an action or condition. An agent that brings something about,” and the verb “cause” as “to be the cause or occasion of; to effect as an agent; to bring about.” It does not appear to me that mere existence meets the definition. The tree had existed for years without falling.  The insured had nothing to do with the fact that the snow accumulated until the branch broke.

We must look at the principle of negligence (ignoring cases of strict liability) and consider duty and the supposed behavior of that mythical “ordinary, prudent person in the same or similar circumstances.” Since the insured did not cause the loss in question either by his action or his failure to act, the damage to property of others clause should not respond.

From the editors: A standard desktop dictionary defines “to cause” as “to serve as a cause of occasion.” That same dictionary goes on to say that “a cause” is “something that brings about an effect or a result.” If we want to identify a “cause,” we can go so far as to say that the insured allowed the tree to grow in that particular spot.  Applying a “but – for” test, we find that the tree limb would not have fallen if it had not been there. In that sense, the loss was caused by the insured.

In the matter of negligence, most personal injury attorneys could build a good case based on the tree owner's lack of maintenance of the tree. Were the branches rotten? Should the branches have been trimmed back? If these questions could be answered in the affirmative, then the tree owner is negligent.

However, it is important to remember the purpose of the coverage. It is “good neighbor” coverage intended to cover those little things in life that “just happen.” It eliminates the need for legal action and animosity between neighbors.