Have to File Civil suit / Legal Advice Needed

[asphaltgambler]

Readers Digest version


We currently rent; riding out the housing boom-bust here in Northern Va.

Very large tree in front yard broke off and fell on my daily driver causing $2300.00 worth of damage. This particular tree is rotted and has had other large limbs twice before break off and cause slight damage to the home. Landlord / home owners are aware of this. There was no wind or rain that day of any kind

Tree-cutting guy advised them twice prior to fell the entire tree because of major rot. Both prior times they only had what was fallen cut up and removed.

Their insurance company only "offers" to pay for my broken windshield. Two stern follow up letters to the insurance agent with the last threatening legal action if no full restitution per estimate.

No response and it has been two weeks. I now need to file suit in the local county courthouse.

Do I name the insurance company, agent AND the home owners (husband and wife) when I file ??

By the way these people are somewhat financially challenged but they do own one other property. He is long-time attorney barred from practicing law ever again. Stealing from his clients.

They now live in Cali

Sound advice please.

[Christien]

Usual disclaimer: I'm in Canada and laws are possibly different, but I would say yes, name the insurance company AND the owner/landlord. As to husband, wife or both, it would depend on who is (demonstrably) responsible for maintenance on the house. Your issue here is both liability AND negligence. Who's responsible for keeping the property safe? (liability) Why weren't they doing their job? (negligence)

At $2300 damage it's probably not worth the money to hire a lawyer, but you may want to at least consult with one for advice. As with all things, though, you get what you pay for, and if you get free legal advice, well, it may be worth the price you pay. My experience with legal aid (had them call me a few times for actions against my company) is that they're a joke, but again, YMMV.

Hope this helps.

[Rot 911]

You just sue the home owners. Then they contact their insurance company to see if they are going to defend the suit. But before you go to the expense of a civil suit check with your court clerk and see what the limits are on a small claims suit. Most states have upped the dollar amount that you can sue for. Much cheaper to sue in small claims court and you have as good or better chance of prevailing and you get into court much quicker.

[Rot 911]

I just checked and the upper dollar amount you can sue for in Small Claims Court in VA is $5000. Here is the VA Courts website that tells you everything you need to know about how to file suit in small claims court: http://www.courts.state.va.us/pamphlets/small_claims.html

[Rodeo]

Go to Small Claims Court, hopefully $2300 is within their limit. Even if the limit is $2000 I'd still go there. It's so much easier for a lay person.

In my state, the insurance company would not be a proper party. I don't know about VA. BUT, even if they are not named a party, you want to put them on notice of the suit so they will cover any award.

I see 2 issues:

1. Assumption of the risk/Contributory negligence. Did you know anything about the condition of the tree? If so, that would be a defense.

2. Whose responsibility was it to care for the tree? Your lease and any residential landlord/tenant laws will determine this. If it was clearly the landlord's responsibility, this will not be an issue.

Disclaimer: This is NOT legal advice, don't rely on it in any fashion!! Seriously

[turbo6bar]

Small claims court is good for this. Try to document the fact the landlords knew this was a hazard. They are responsible for this.

[asphaltgambler]

Thanks all.

I plan to file and represent myself if it goes that far. Have a fair amount of court time and know the basics.

Every one knew the rotted tree was an issue, but we as tenants have reminded them twice prior as well as the tree guy.

The tree is in the front yard and there is a clear designated parking area 30-40 ft from the base. In fact the insurance agent asked why I continued to park there if I knew that the tree was rotten. I replied that is where designated parking is. Period.
.
If it goes to trial I plan to subpeona the tree guy. I was also planning to subpeona the owners, hoping that they would bail based on the fact that round trip tickets from Cali to Va would equal the suit.


Thanks Kurt for the link, very helpfull

[tobster1911]

Just realize that even if you get a Court judgement, this is not equal to money in your pocket. Ask me how I know. Also be prepared for a long haul if you want to do this. I am going on 3yrs trying to resolve something in Court(s). There are LOTS of ways they can stall/avoid you. It seems the most successful is just to ignore you. Hopefully in your case they will not...

[asphaltgambler]

If I get a judgement I will file a lien on the property that we currently rent.

[legion]

Can you not go through your auto insurer?

You could get it repaired and then your insurer will subrogate against your landlord's property insurer. A much better option if you want to skip court.

[Christien]

A lien on the property will only generate money if and when the owners try to sell. tobster's right that a judgment doesn't always equal money. My company has several judgments against defendants, none of which have paid a dime yet.

Once you get judgment you can file to garnish bank accounts or paycheques, but that assumes they have money or paycheques. Or seeing as you more or less provide their paycheques, you might be able to withhold rent and live there for free until the debt is paid. But then you've got a rather nasty relationship with your landlord and that could be really bad. You wouldn't want to have to go to court every time something needs repairing or anything.

[Rodeo]

Hate to say this, but if I'm the judge, I don't think I'd give you this one. You knew about the condition of the tree, had had it examined by experts and had complained about it to the landlord, yet you continued to park under it?

Sounds like you knew it was dangerous, and assumed the risk that it would fall on your car. At the very least, you contributed to the loss by parking under a tree you knew was dangerous.

Maybe, maybe if there were absolutely no other alternative places to park, maybe you would squeak through with me, but still ... I don't know.

I'm only bringing this up because you might get a judge that feels the same way, and you should be prepared to respond.

[Rodeo]

Good point. Although I suspect that the measure of damages for part of the property being useable would be rather small. Probably the difference in fair rental value with a driveway vs. without a driveway.

[asphaltgambler]

The driveway is below grade of the house and the tree respectively.

Tree base is about 20 ft from the house. Parking area is about 30-40 ft opposite side of tree base, down hill.

Rodeo - I dissagree. We have lived here three years and there is a common theme of negligence (or inaction) on other issues with the property. We have on many occasions discussed with the landlords that this tree and others need pruning and some need removal because of rot. They agree and then do nothing. I'm almost sure I cannot bring this fact up in court though.

Since I will include the insurance company, won't the judge force them (company) to pay because of existing coverage?

The owners have indicated that they will sell in the spring of '07. A lien would work my opinion

[Rodeo]

In the courthouse, everyone disagrees with everyone else

Assumption of the risk doctrine says that if you knowingly put yourself or your property in a dangerous situation, you can't recover from the negligent party, even though they caused the situation. Why? Because you "assumed the risk."

Extreme example: If your landlord stored hazardous chemicals in the basement that were leaking and causing all sorts of health problems, but refused to do anything about it, you couldn't live there for 25 years and then sue him when you got cancer. You knew the risk, you assumed it by remaining there knowing he was doing nothing.

Your case is closer, of course, but still classic assumption of risk. I'm not saying I'm right, I'm just warning you to be prepared.

[turbo6bar]

If Rodeo is right about assuming risk, then landlords across the country would not be responsible for remediation of asbestos and lead paint. I think the key is demonstrating the landlord was aware of the hazard and chose to do nothing. I'm a landlord and not a law grunt, so my word is worthless in a court of law.

[nostatic]

why isn't your insurance company dealing with this? That's what they're there for...

[asphaltgambler]

If I report it to my insurance, my premiums will undoubtedly go up even if my insurance company goes after their home owners and wins.

I don't realistcally see this as a good option. I do have coverage though.

In Va there is the 90/10 assumption of contributing risk, however also in Va there is The Va bureau of insurance where by all insurance companies doing business in this state must abide by basic rules outlined on their 'charter'

One rule is that landlords / home owners in the event of an accident / problem must take reasonable action so as to prevent any further risk or damage from the same 'problem'

[Aurel]

This thread without a picture of the smashed car is useless.

Aurel

[asphaltgambler]

It's more bumpy and dented than smashed