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 digs into his property and finds 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 and that 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 defines “Occurrence” as: “occurrence” means 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

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.

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