Logger Injury Question

[joe curtin]

i hired a 25yo man to cut some trees on my property in upstate NY. After 4 weeks of weekend work he was injured when a tree he was cutting fell and broke his leg. He had a steel rod put in his leg and is doing ok but of course it's a serious event which I reported the same day to my insurance company, one of the big firms. I have not heard back yet.

His family have stated they don't want to sue however that will likely change with time, they are quite poor. He does not have insurance.

Two facts

1. I had told him the previous day he should stop downing trees and just cut the already downed trees into smaller sections to be piled up. He verbally confirmed this "plan" the day of the accident but obviously did not follow it.

2. The tree that fell on him was one of 3 trees he himself had stated should not be cut because they were too close to my house and too dangerous. He wanted to wait until he had an excavator on site to knock them down more safely. He went ahead and cut 2 of the 3, the last causing the injury.

What is my exposure here, whether negligence or other? I 'm conflicted as I feel badly for him and do want him to get help with his expenses. He has been calling and I don't know what to say to him. My policy says personal liability 500K, medical payments to others $5K.

Any advice appreciated.

 

[adjusterjack]

What is my exposure here, whether negligence or other?

I don't see any negligence on your part.

I 'm conflicted as I feel badly for him and do want him to get help with his expenses.

Don't say that. Don't even think that. The minute you start talking to him about that you prejudice your insurance company's right to handle the claim and provide a defense and you risk losing your insurance.

He has been calling and I don't know what to say to him.

The ONLY thing you tell him is "I've reported this to my insurance company. It's out of my hands." Then stop talking.

My policy says personal liability 500K, medical payments to others $5K.

If that's a homeowners policy that extends liability and med pay to vacant land, then your med pay section may provide some money for him regardless of fault. Any question of negligence is likely to result in a vigorous defense.

I reported the same day to my insurance company, one of the big firms. I have not heard back yet.

Then call your insurance company's claims department right now and get the claim number and claim rep's name and phone number and find out what's going on.

 

[xrac]

I would definitely raise my limits after this incident including something higher on medical payments to others. Five thousand is like one trip to the emergency room. Sounds to me like you are somewhat under insured.

 

[joe curtin]

Thanks for the detailed reply.

I've done everything pretty much as you said. Insurance agent did call and I gave the story as above, didn't whine about wanting to help him. She asked for his number and also asked if he supplied his own tools, which he did, I suppose that is the question of employee vs independent? Also said "we'll look at the policy and see if there's anything we can do for him".

The land was residential, right behind my house.

I've said nothing to the injured guy but 'get well' followed by pregnant silence lol. Oddly he had asked me during the past month to not pay him till the end as he has trouble holding onto money. I've now asked him 3 times for his hours and he has not provided them. I mention this because the day of the accident I did go to the hospital briefly, just to show my face. His mother-in-law suggested I report him as a friend not someone I hired. She stated the insurance might be "friendlier" that way. I ignored that.

While being rescued by EMS he was shouting he had bipolar disorder, manic depression, other stuff which colors the picture a bit. It should all be in the police and EMS reports.

Anyway I don't see that he'll have any choice but to find an injury attorney and come up with some kind of negligence, he's poor with a long road ahead. And I better get over my nice guy routine.

 

[VolAgent]

Anyway I don't see that he'll have any choice but to find an injury attorney and come up with some kind of negligence, he's poor with a long road ahead. And I better get over my nice guy routine.

Don't stop being a nice guy. Just stick to the facts and don't volunteer opinions or information that wasn't requested going forward.

"I hope you recover soon. I have turned everything over to the insurance company and I am unable to discuss it further. You have my deepest sympathies and again I hope you recover soon."

 

[joe curtin]

Read my policy over (for the first time naturally). Highlighted the parts that concern me. Not sure if the red sentence means either

a) they won't cover damage to my land
b) they won't defend me in a liability suit for an accident on my land.



COVERAGE A - Dwelling
We cover:
1. The dwelling on the "residence premises"
shown in the Declarations, including structures attached to the dwelling; and
2. Materials and supplies located on or next to the "residence premises" used to construct, alter or repair the dwelling or other structures on the "residence premises."
This coverage does not apply to land, including land on which the dwelling is located.

... under Definitions

4. "Insured location" means:
a. The "residence premises";
b. The part of other premises, other structures and grounds used by you as a residence and:
(1) Which is shown in the Declarations; or
(2) Which is acquired by you during the policy period for your use as a residence;
c. Any premises used by you in connection with a premises in 4.a. and 4.b. above;
d. Any part of a premises:
(1) Not owned by an "insured"; and
(2) Where an "insured" is temporarily residing;
e. Vacant land, other than farm land, owned by or rented to an "insured";
f.Land owned by or rented to an "insured" on which a one or two family dwelling is being built as a residence for an "insured";
g. Individual or family cemetery plots or burial vaults of an "insured"; or
h. Any part of a premises occasionally rented to an "insured" for other than "business" use.

Medpay portion seems to say it will cover such an accident.

We will pay the necessary medical expenses that are incurred or medically ascertained within three years from the date of an accident causing "bodily injury." Medical expenses means reasonable charges for medical, surgical, x-ray, dental, ambulance, hospital, professional nursing, prosthetic devices and funeral services. This coverage does not apply to you or regular residents of your household except "residence employees." As to others, this coverage applies only:
1. To a person on the "insured location" with the permission of an "insured"; or
2. To a person off the "insured location," if the "bodily injury":
a. Arises out of a condition on the "insured location" or the ways immediately adjoining;
b. Is caused by the activities of an "insured";
c. Is caused by a "residence employee" in the course of the "residence employee’s" employment by an "insured"; or
d. Is caused by an animal owned by or in the care of an "insured."

Time to rethink all my coverages. I'm sure once the adjuster sees all the downed trees this logger left behind I will be searching for a new insurance firm!

 

[VolAgent]

Read my policy over (for the first time naturally). Highlighted the parts that concern me. Not sure if the red sentence means either

a) they won't cover damage to my land
b) they won't defend me in a liability suit for an accident on my land.



COVERAGE A - Dwelling
We cover:
1. The dwelling on the "residence premises"
shown in the Declarations, including structures attached to the dwelling; and
2. Materials and supplies located on or next to the "residence premises" used to construct, alter or repair the dwelling or other structures on the "residence premises."
This coverage does not apply to land, including land on which the dwelling is located.

Assuming the sentence you highlighted in red is in the section for Coverage A, it doesn't mean what you think it means. Coverage A relates to coverage for the dwelling (your home) and repairing or rebuilding after a covered loss. Yes, they do exclude coverage for the land in this section. So if something damaged or otherwise altered the land, they aren't paying you for its value. Coverage A has nothing to do with liability which is what you need for the logger.

 

[joe curtin]

These clarifications are very helpful. I will be in a holding pattern for a while now till I hear from insurer and possibly a letter from the logger's lawyer, which seems inevitable.

I came across this article

Can a Homeowner Be Held Liable for Injuries to a Contractor? - AllLaw.com

and wonder where the line is drawn regarding "control" over contractor. I did tell him to stop cutting trees and focus on cutting the downed trees into smaller sections. The land had become a puzzle of downed trees which was going to be impossible to get an excavator into. He agreed this was the best "plan".

Of course he kept cutting, but did I meet the degree of "control" over the contractor that would give me a duty to protect him? This appear to be an important liability distinction.

He also won't give me his hours which is annoying. And I don't want to write him some arbitrary check.

 

[xrac]

If your defense is that he is a contractor then I would probably not mention that "I did tell him to stop cutting trees and focus on cutting the downed trees into smaller sections." because that seems to me like he was more of an employee and less a contractor. I do not think that his not proceeding as instructed is any defense for you. However, I am not a lawyer. Depending on the severity of this injury you may want to consult a lawyer. The insurance should defend you up to $500,000 but they would walk away at that juncture if this should be a situation where medical bills and a court award exceed that amount. I am not saying it is but just playing the devil's advocate on worst case scenario. That is why I carry a $1,000,000 umbrella on top of my home owners coverage. Umbrellas are cheap and help boost coverage up to a level where one can sleep better.

I just read the insurance company won't defend you. I would definitely be talking to an attorney.

 

[joe curtin]

just curious where you read that the insurance co won't defend me? Is it that cut and dry?