Is a Property Owner Liable if a Tree Falls on a Car

My question involves a traffic accident in the State of: MICHIGAN

An old, dead tree fell on my car (while parked) in the plaza where I work, causing damage.

If the owner of the plaza or his insurance will not pay for my deductible, can I win in small claims court? I have photos, several witnesses, and a police report. My insurance will not help me recoup the deductible.

Thank you.

Of course your insurance will not help you pay the deductible .. how about the insurance company going after all of it?

If not, small claims. You'll have to find who owns the lot .. it may not be your employer (likely not so I understand why your employer refuses to pay)...you need to take a trip down to the tax assessors office (or online) to find out; then go to the secretary of state's business website, find the registered agent and serve the registered agent with your small claims case. Do you have pictures of the tree? Samples from the tree?

Was the tree a dead tree?

And how much damage? What type of car? (1976 pinto lol -- her's five bucks kid).

Get 3 estimates for court.

I said I have photos. Yes it was a dead tree. I am not going after my employer, I said the owner of the plaza. I know the company that owns it, I have spoken to the owner and he would not say if his insurance would cover my deductible. He is not returningy calls.

My plan was to send a certified letter with the copy of my deductible bill and if he does not pay or respond, take him to small claims. But will I win? Because I am not paying $550 deductible if it cannot be recouped.

You do not sue (or attempt to collect) just the deductible from the at fault party. Your insurer will expect to be repaid from any judgement/settlement you receive if they pay out.
Your first thing is to contact (by letter in addition to phone) the owner of the tree and their insurer (if you can figure it out) and point out that they ARE responsible.
If they do not wish to handle it you can either see if your own insurer will pay and attempt to subrogate against them (in which case you will ultimately get the deductible back) or you sue them in court (perhaps small claims depending on the total damage) for the FULL AMOUNT of the damages.

There's no reason that it would be necessary to sue for the full damages, as opposed to out-of-pocket losses. There's nothing in the law that says you must sue for every potential cent of a damages claim. It is worth checking the insurance policy to see what provisions it contains that might relate to a recovery, but I doubt that there is anything that would prevent a lawsuit to recover the deductible where the insured has actually paid that amount out-of-pocket.

That said, it sounds like Jasmine does not want to file an insurance claim at all unless she is guaranteed recovery of her deductible. Within that context it makes sense for her to check her insurance policy for any deadlines for making claims, as she may miss a deadline by the time her claim is resolved, and whether she wants to completely forego the filing of an insurance claim and simply sue for the full amount of her damages. With no claim made, her insurance company would have no subrogation rights. If she won, she would have no reason to file a claim. If she loses, though, we're back to the importance of not missing any deadlines for filing a claim with her own insurance.

Liability would arise from whether the owner knew or should have known that, due to damage, disease or its condition, the tree was in danger of falling. You have a better chance of proving that if the tree is obviously dead or dying than you would if the tree appeared healthy but lost a limb in a severe storm or were hit by lightning.

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There's nothing in the law that says you must sue for every potential cent of a damages claim.

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I never said there was. What I said is that you don't do it for the reasons I stated.

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It is worth checking the insurance policy to see what provisions it contains that might relate to a recovery, but I doubt that there is anything that would prevent a lawsuit to recover the deductible where the insured has actually paid that amount out-of-pocket.

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I guarantee there is. The insurer reserves the right of subrogation and if you decide to sue independently they have the absolute right to recover what they've already paid you.

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That said, it sounds like Jasmine does not want to file an insurance claim at all unless she is guaranteed recovery of her deductible. Within that context it makes sense for her to check her insurance policy for any deadlines for making claims, as she may miss a deadline by the time her claim is resolved, and whether she wants to completely forego the filing of an insurance claim and simply sue for the full amount of her damages. With no claim made, her insurance company would have no subrogation rights. If she won, she would have no reason to file a claim. If she loses, though, we're back to the importance of not missing any deadlines for filing a claim with her own insurance.

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Exactly. Her options are:

1. Forgo her own insurer and sue for the entire damages from the at-fault party.
2. Claim with her insurer, take the money less the deductible and wait for them to subrogate for the remainder.

I'm confused, and just want to avoid losing the large deductible that I will have to pay if I go through MY insurance. I was told by the claim department that they would not recover the deductible for me, just the rest of the damages.

Does it make sense to get an estimate of damages and try to get the property's insurance to cover the whole thing? Will that work? Isn't that what their insurance is for?

If they refuse, can I take them to small claims for the full amount of damages? (assuming it's less than $3k.)

EDIT: Also, I did file a claim with my insurance company, but have not taken the car in yet. Does that factor in at all?

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Quoting jasmine8

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EDIT: Also, I did file a claim with my insurance company, but have not taken the car in yet. Does that factor in at all?

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The insurance company has not paid yet .. then if you want, cancel the claim. Yes, your insurance company can sue for you and they'll collect all the damage $$; they'll take out the deductible & then hand you over the rest. If you want it all, then leave your insurance company out of it.

Did you post at free advice? How did they treat you over there? Most of the posters have a tendency to troll.

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Quoting flyingron

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I guarantee there is.

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Perhaps you didn't understand what I wrote, as that is incorrect. Insurance companies only gain subrogation rights to money they actually pay. If they don't pay the deductible, they have no subrogation rights to the deductible.

Nonsense.. . you think the insurance company in general is going to be happy if I sue you for $500 which prevents them from further subrogating against you for the $5000 of damage that they already paid out?

There are two different issues here. The first is whether the insurance company can assert subrogation rights to amounts it has not paid. As was previously indicated, subrogation rights are to recover monies paid out, so there is no such right. The contract of insurance may allow the insurance company to attempt to collect the deductible along with the money paid out with the idea that they will reimburse the insured for the deductible if they recover that amount, so it often makes sense to let the insurance company attempt to subrogate. (In some states the insurance company must attempt to recover the deductible for the insured when litigating a claim based upon subrogation.) The second issue is whether a lawsuit for the deductible would preclude the insurance company from exercising its subrogation rights and whether the insurance contract prohibits the insured from bringing an independent lawsuit on that basis. A number of states have statutes or case law applying to subrogation that makes subrogation a separate and independent cause of action from a claim by the insured for recovery of losses not covered by insurance. See, e.g., State Farm v. Ware's Van Storage, 953 A.2d 568 (Pa. Super 2008). In states that do not give the insurance company an independent cause of action the insured should work with the insurance company and adjuster, and be sure not to bring a lawsuit that will prevent the insurance company's exercise of subrogation in contravention of the insurance contract. Sometimes the insurance company will opt not to subrogate, usually due either to questions of liability or a determination that pursuing the claim will not be cost-effective, and will thus release their insured to sue subject to a lien for any amount recovered in excess of out-of-pocket losses.