A car ran into our yard, AAA Auto Insurance Company won’t pay for permanent damages to my tree…?

Question

A car ran into our front yard, the driver claimed in the police report that she fell asleep on the steering wheel (this happened at 2pm). The car was totaled and did damage to our: lawn, fences on each side, mail box, concrete planter on one side, and major damage to a brick planter containing a mature tree (30 years old), the tree was also damaged.

We are told that the tree is hearty and will survive, but bark was removed by the impact of the car permanently damaging, scaring and deforming the tree. New growth on the tree will never cover this damage. No growth will ever take place over the areas where the bark was removed by the impact of the car.

I hired an arborist who placed a dollar amount on the loss of value of the due to the permanent scaring and deformity of the tree. The insurance company refuses to pay any amount for the damage for loss of value for the tree, (they are willing to pay only for the cost of trimming the transition area between the remaining bark and the exposed (bear) wood. The insurance company is willing to pay for the other damages (fencing, lawn area and repair the brick planter), but NOT for loss of value of the tree. We also had to replace (not repair) the entire brick planter with my own money because the repair job would not match the existing part.
Is it unreasonable for wanting money for the permanent visual damage to a mature tree located directly in front of my front door?
Before I contact AAA Auto insurance company, I need to know the most effective / best way to demand a settlement amount for the permanent damage / scaring to the tree. What things can I say or write to the insurance company?
What are my options before I file in small claims court?
Also who do I file against in small claims court? Is it both the driver, owner of the car, and insurance company or who?

Answer 1

This is a perfect example of how peoples rights get trampled every day as well as people getting ripped off... the best thing that you could do is have a lawyer send the insurance company a letter on their great letter head with a few fancy names telling them the same thing that you are telling them.. The difference would be that they would know that they can't screw you cause you have someone protecting your rights... the hard thing is in today's society it doesn't make sense to pay a lawyer 200 bucks an hour for a few hundred dollar problem. It sucks that it is cheaper to get RIPPED off and RAKED over some coals cause people know there isn't anything you can do, because they realize the same thing. If you want to prevent that from happening ever again take a look at my "protecting your family" blog on yahoo360 and gain the access you deserve to your rights. In this particular situation they could still help. If you want to know how contact me personally....

Answer 2

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Answer 3

Sorry about the damage to your property. To answer your questions: 1) Settlement to permanent scarring to tree: if I'm correct, the tree is not dead, but damaged. You would only be entitled to value of repair/maint or value of replacement less depreciation (if applicable) - not both. 2) If you believe you still have a valid point - submit written proofs (perferably from more than one source to validate)- verbal will not do. Request the adjuster to reconsider their position based on your proofs 3) Options: If the company paid, you would not be entitled to go to small claims as well for property damage (note: unknown what state you are in). 4) If you decide to pursue small claims - you would sue the driver for damages - note, the company will represent the insured and move you out of small claims into a civil court, which will cause you to obtain an atty. Evaluate your situation. The majority of companies are more than fair with individuals in settling claims. Note: insurance is not for individuals to be put at a better position than they were before the loss - many get confused on this issue.

Answer 4

In the answers given heretofore, I read some common misconceptions about insurance.

In answer to your question, the point of a settlement for a liability claim is to indemnify the claimant (you in this case). Indemnification means to put someone back like they were before the damage occured. Since you can't really be put back in the strictest sense of those words (you'd need a time machine to do that), the insurance company can only offer money. That money is to either pay for the cost to repair the damage or to replace the damaged item or to pay for the difference in value of the item.

The adjuster will need all available information you can offer in order to come up with a fair settlement. In your specific case, I would look closely at the tree, the landscaping around it, if any, and the condition of the yard and house. Obviously, an owner with an immaculate house and a manicured lawn will have different damages than a claimant with a lawn rarely cut and a dilapidated house. Put another way, if putting you back to where you were before means restoring you to unkempt conditions then the scarring to the tree makes little difference. If your lawn qualifies for lawn of the month and a magazine layout, the scarring to the tree would be much more noticeable. You might question why this is relevant. Well, this is what comes of translating damages into dollar values.

There may well be other factors to consider in your particular case in order to come up with a fair settlement. If you believe you really are owed the cost to replace this tree, counter the adjuster's offer with the value the arborist gave. This is a negotiation, afterall, and in any negotiation, a successful settlement is one that is fair to both parties.

As to lawyers: The adjuster and the insurance company for which they work really aren't impressed with a letter with a fancy letterhead from a law firm. If you want to retain a lawyer, go for it. I doubt a lawyer would actually take the case (there's no money to be made here) but they might be more than happy to give you a little advice, point you in the right direction.

As to your rights, they are protected by the law. The lawyer only operates within the law. The lawyer does not enforce the law. And what the law has to say about these matters is that if you have been damaged by a party who is insured, through no fault of your own, you are entitled to reasonable compensation for your damages by making a liability claim with that person's insurance company.

As to complaints to your state's department of insurance: this is a valid option at your disposal. The DOI is supported by your tax dollars - why not use them? They will give you a complaint form to fill out then contact the insurance company, usually by mail. The insurance company, likely the adjuster's supervisor, will respond to the complaint in a letter to the DOI. However, the DOI's inquiry and the insurance company's response will not likely be about damages to your tree. Rather, it will be about the larger question of whether the insurance company conducted a fair investigation, contacted you within a reasonable time and made a reasonable offer to you to settle the claim.

The insurance company does not truly "hate" to be made to respond to a complaint from the DOI. This is simply one of the checkpoints in the system. What's more troublesome than a complaint letter is the somewhat random audits from the DOI. They are not more troublesome because they are a cause for worry; rather, they represent extra work. But they are also a checkpoint in the system

As to small claims court (another checkpoint provided by your tax dollars), you could file a small claims action for money owed but the magistrate is truly going to wonder why you are going through the court to obtain a judgement for damages when you have apparently already received an offer to settle. The court is there to give a "judgement" on whether or not the other party is negligent and whether or not you are entitled to damages. That judgement is not about the relative value of a tree or scarring.

There exists such a great misconception among the general public regarding lawsuits, lawyers and insurance companies. Consider that insurance companies are large business entities who receive many, many, many claims every day. Consider that the adjuster is a professional who handles many claims every day. There simply is no conspiracy among adjusters to "screw people out their money" as is often thought. The adjuster's job is simply to evaluate coverage, liability and damages (in that order) and pay what is owed. No more, no less.

It sounds like you have a made a good start on seeking and obtaining a fair settlement. Contact your adjuster, state your concerns, make a reasonable counter offer, and support that offer with the facts.

Answer 5

I hate to say it, but your are probably out of luck on this one. For what it will cost in time, effort and money on your part, might be best to plant some tall bushes or ivy around the tree. At least now the tree has more character and will be a good conversation starter for some time (sorry, this is kind of a "glass is half full reply").

If you really do wish to pursue this, be nice. Might as well request a manager as no mere claims rep will stick his/her neck out and approve this one. Make a concise argument and fax in the arborist's reports (good idea to get that report done by the way) and be persistent. Call every day if need be (remember to be nice).

I do not really know what to say on the small claims court side. Think it will be more of an irritant than it is worth.

Answer 6

This will depend on state to state regulations but the damage to the tree should also be covered under the liability portion on the other parties vehicle insurance. You seem to have gone out of your way to gain an estimate for the proper cost and treatment of the tree which will look very good in a court case. You may want to seek the assistance of your state insurance department and they can give you the advise on wither you should go through arbitration to seek coverage or go directly to small claims in which case if AAA losses they will have to pay in addition to the tree damage. loss of time (work time to go to court) and court costs. Good luck to you. Most states Insurance Departments are very helpful.

Answer 7

It sounds like you are at the point where you want to make the insurance company show some responsibility.
You can do this pretty easily.
Contact your state insurance commissioners office, and ask for a complaint form. Perhaps you can file this form "online".
Insurance companies HATE to be made to respond to the commissioners office!!!!
Supposedly the commissioner is the consumers protector, and it will not cost anything but time. You can always go to the expensive lawyer, although simply having them write a letter shouldn't cost to terrible much.

Answer 8

As you probably know insurances companies are out there to earn a profit, to increase profits they will pay out the least amount they can get away with. Most likely, there is not enough to get a lawyer involved (many of them also like to take advantage of people when in need), I would suggest that you take your case to small claims court, be sure to have all the information to back up your claim.

Answer 9

OK, they are never going to pay you for loss of value to the tree without a judgement from court. You are going to have to refuse settlement, and take them to small claims court.

You take the driver and the owner of the car to court, and the owner's insurance company will provide the defense. The insurance company did not cause the loss, so you can't drag them into it.

Answer 10

I hate to say it, but it sounds as though you are trying to inflate this particular claim. I have no dog in this fight, so my discussion is based solely on your post here.

What sort of value are you claiming on this tree? The arborist's estimate may be grossly optimistic. What is the decreased value to this tree? Are we talking about a tree worth $100k and you are claiming a couple grand in damage? The dollar amounts matter here, if you were trying to get an extra $300 out of them, this might fly. However, I have a strong feeling here that you are attempting to claim thousands for this tree...