In previous blogs, we explored the concept of “timber trespass,” a type of legal claim that arises when someone else cuts down your trees without permission. Timber trespass claims can occur intentionally and accidentally. Intentional timber theft is rare and usually occurs when a logger attempts to steal standing timber in order to sell it for a profit. RSA 227-J:8-a states that “No
person shall recklessly cut, fell, destroy, injure, carry away, or cause to be cut, felled, destroyed, injured, or carried away, any tree, timber, log, wood, pole, underwood, or bark which is on the land of another person, or aid in such actions without the permission of that person or the person’s agent.” If someone is found guilty of violating RSA 227-J:8-a, they can be guilty of a class B felony.

Negligent timber trespass is more common. Negligence is the failure to use reasonable care. It most often occurs when the perpetrator (often a neighbor or tree service company) is under a mistaken belief regarding the location of a property line, or simply doesn’t exercise any due diligence about said boundary line. Negligent timber trespass most often occurs on residential lots because their small size can lead to accidental encroachment. Additionally, most residential landowners do not commission surveys before engaging in tree-cutting activities — most often, they “eyeball” where they think the property line is based on their own belief or usage.

Ironically, for many victims of timber trespass in New Hampshire, they are better off if their trees were chopped down accidentally rather than intentionally. That is because claims or lawsuits based on accidental (i.e., negligent) timber trespasses are likely to be covered by liability insurance.

Liability insurance

“Liability insurance is a contract by which one party promises upon a consideration to compensate or reimburse the other if he shall suffer loss from a specified cause.” Acadia Ins. Co. v. McNeil, 142 N.H. 815, 818-19 (1998). The “loss” that is being insured against is “legal liability, usually based upon the insured’s negligence.” Id. at 819. Specifically, most liability insurance policies cover “occurrences,” which are often defined as “accidents” causing bodily injury or property damage. See Webster v. Acadia Ins. Co., 156 N.H. 317, 322 (2007).

Most contractors, including tree services, carry liability insurance as part of their general commercial insurance policies. So if a tree service or other contractor was involved in a timber trespass, they may have insurance coverage available to compensate a landowner for their felled trees.

Often, however, the more straightforward legal case is against the neighbor who hired the tree removal company. The neighbor, after all, is the person who hired the tree service and directed them to remove certain trees. The neighbor therefore has a duty to make sure the tree service is only cutting down trees owned by the neighbor. See Burris v. Krooss, 563 S.W.2d 875, 877 (Tex. Ct. App. 1978) (“A landowner who intends to have timber cut on his land owes a duty to an adjoining landowner to ascertain the boundary line of the adjoining land with diligence and care. A failure to discharge this duty may subject the landowner to damages resulting from such failure.”).

Thankfully, most property owners also have liability insurance as part of their homeowner’s insurance policies. The personal liability portion of homeowner’s insurance is intended to be “catch-all” type of coverage for bodily or property damage caused accidentally by an insured. See Buirkle v. Hanover Ins. Cos., 832 F. Supp. 469 (D. Mass. 1993). It is subject to many exclusions: your homeowner’s policy, for example, won’t cover you for liability caused by driving a motor vehicle or in pursuit of a business activity. But it should provide liability protection for timber trespass claims.

As noted above, liability insurance covers “occurrences,” which are “accidents.” Liability insurance specifically does not cover intentional harm — so if you set fire to your neighbor’s house on purpose it won’t help you, but should provide coverage if a fire spreads to your neighbor’s house because of your accidental (including negligent) conduct.

What constitutes an “accident” covered by insurance is not always clear. In legal-speak, “an accident is an undesigned contingency, a happening by chance, something out of the usual course of things, unusual, fortuitous, not anticipated, and not naturally to be expected.” Vermont Mut. Ins. Co. v. Malcolm, 128 N.H. 521, 523 (1986). In the context of timber trespass, tree-cutting is “accidental” if the cutting was performed without an intention to harm someone else’s property and “in ignorance of the true location of the common boundary line between the two properties.” A.B.C. Builders v. American Mut. Ins. Co., 139 N.H. 745, 749 (1995).

Therefore, the personal liability portion of most homeowner’s (and renter’s) insurance policies should provide coverage for timber trespass claims. So if your neighbor (or a tree service they hire) cuts down trees that were actually owned by you, their insurance should cover your claim.

Generally speaking, proceeding via insurance claim is preferable to jumping straight into a lawsuit. It is the job of insurance adjusters to try and settle valid legal claims against their insureds. Thus, much like a car accident claim, it is possible to negotiate a settlement with an insurance company in a timber trespass claim prior to starting litigation.

Once a lawsuit starts, an insurance defense lawyer will be assigned to the case, which could subject a plaintiff to discovery, depositions, motion practice, and even a trial. Litigation can be time-consuming, expensive, and inconvenient. It therefore is usually in both parties’ best interests to try and resolve the case pre-suit.

Conclusion

If you believe your trees were cut down without your permission, start by reaching out to a lawyer. Timber trespass claims are not “run-of-the-mill” matters like car accidents. They involve a niche area of law and should be investigated and developed with care. In the hands of an experienced attorney, tree-cutting cases can result in a significant monetary settlement. Trees are valuable and their benefits are expensive to restore.

If you have questions about a timber trespass claim, contact Attorney Israel F. Piedra at Welts, White & Fontaine, PC. He has recovered hundreds of thousands of dollars on behalf of clients whose trees were cut down by their neighbors. You can call us today at (603) 883-0797, or use our contact page. Welts, White & Fontaine is Nashua’s biggest law firm and serves the legal needs of both individuals and businesses in towns such as Amherst, Milford, Hudson, Brookline, Windham, Hollis, Merrimack, Litchfield, Bedford, Londonderry, Pelham, and of course Nashua.

This blog is intended for informational use only. The information contained herein should not be construed as offering legal advice or a legal opinion.

Author: Israel F. Piedra