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Newt
USA
657 Posts |
 Posted - 01/10/2003 : 05:55:00
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An older home is in the burbs, and a new golf course is built near by.
A golf ball strikes a picture window breaking the outer pane, it is gas filled triple glazed.
The estimate is $840.00
The ball went over the house struck a tree in the back yard, bounced, and hit the window.
Std HO3 ISO $250.00 Deductable
Questions:
1. What is the peril?
2. Is there a hazard, and what can be done about it?
3. What would the carrier owe?
4. How would the adjuster go about documenting the hazard? Would you make a sketch of the fairway and /or take pictures?
5. Would you consider this "value added" to your product or would you expect to be paid?
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JimF
USA
1014 Posts |
Posted - 01/10/2003 : 07:03:50
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No 'peril' is necessary to trigger coverage under an HO-3 ('Open Perils' or 'All Risk') coverages to Coverage A property.
The total amount of damage would be paid in this case RCV less deductible.
Mention in the closing report of the adjacent golf course would suffice informing the carrier of this hazard.
Moving away from an adjacent golf course might well be the only loss control technique which could eliminate this hazard risk. |
Edited by - JimF on 01/10/2003 07:08:15 |
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Newt
USA
657 Posts |
Posted - 01/10/2003 : 07:20:31
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| This is an age old problem, fences and high walls don't seem to help. |
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Newt
USA
657 Posts |
Posted - 01/22/2003 : 08:12:40
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My opinion would be: The window would be replaced with no deductable applied. The Golf course would be held liable for the damage by the carrier. In all cases I think they would be held responsible, whether they had coverage for "damage to property of others" or not.
Is that a reasonable assumption? |
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CCarr
Canada
1200 Posts |
Posted - 01/22/2003 : 08:26:22
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| No, not a reasonable conclusion or assumption. |
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Newt
USA
657 Posts |
Posted - 01/22/2003 : 10:03:12
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This has me baffled. If I had knocked a ball over the fence and struck the club house window I would have been liable.
If there is a chance of subrogation I was under the impression, no depreciation would be applied.
I am not trying to be a hard head, It is a case of my not understanding how this settlement would be handled since the cause is from the neighbor or golf course.
I know if it had been my house, I would want to be fully indemified and not expect to pay any deductable.
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CCarr
Canada
1200 Posts |
Posted - 01/22/2003 : 11:20:11
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Life is a 'female dog' some days Newt.
What we want and what we get, don't always come together.
In this particular situation you provided us with, two very different elements are at play, that affect your indemnity and the subrogation issue.
Your policy, the contract, is the first; I believe a deductible would apply. "Glass" coverage is found in the "Additional Coverages" of Section I - Property Coverages of the HO3. You should be able to clearly see of those 10 "Additional Coverages" which few say that "No deductible applies to this coverage".
Secondly, that errant golf ball. The main source of liability for a gold course is nuisance, followed by negligence.
The law of private nuisance deals with invasions of an occupier's interest in the beneficial use and enjoyment of land. These claims, as in your scenario, would be brought by the owners of property situated close or adjacent to a golf course.
In the New York Court of Appeals case (Nussbaum v Lacopo), the plaintiff testified that he had found golf balls on his property once or twice a week, and claimed on one occasion he had been struck by a ball hit by the defendent.
The Appeals Court dismissed the case, and reasoned as follows; "not every intrusion will constitute a nuisance. Persons living in communities must suffer some damage, annoyance and inconvenience from each other ....".
Whether a plaintiff claim will be successful will depend upon the nature and extent of the instrusion with the plaintiff property. Cases suggest that a successful plaintiff will have to show that golf balls are entering his property with sufficient frequency and in such a manner as to substantially interfere with the plaintiff's use of his property.
It does not matter if the golf course was in existence prior to the plaintiff's ownership of his land. Another reported case says, " .... it is clear that whether the man went to the nuisance or the nuisance came to the man, the right are the same".
Another New York Court of Appeals case may more clearly illustrate the issue to you. In 'Rinaldo v McGovern', the defendent playing golf struck a passing motorist with his tee shot. The court held that in order to provide an actionable theory of liability, a person injured by an errant golf shot must affirmatively show that the golfer failed to exercise due care, by adducing proof, for example, that the golfer "aimed so inaccurately as to unreasonably increase the risk of harm".
The court in dismissing the plaintiff's claim summarized its position as follows, " .... although the object of the game of golf is to drive the ball as cleanly and directly as possible towards its ultimately intended goal (the hole), the possibility that the ball will fly off in another direction is a risk inherent in this game".
So Newt, I wouldn't hold out much hope in seeing any recovery. |
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Newt
USA
657 Posts |
Posted - 01/22/2003 : 14:36:29
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I see this as flaw in our system, although flawed it is still the best available.
I can see where these rulings are comming from, who are the golfers and who belongs to the country clubs.
After careful thought, I think you would have the chance of flea crossing the Pacific if you tried to make a claim against the club here.
I don't know of another organization that has the protection of a golf course/country club in a community. I doubt they are required to insure for liability.
Much of our County Business is conducted there, my competitors were golfers and landed most all of the county contracts. I refused them and also the big corporations, they want to give you a contract then own you. I wasn't hurting for business, with 3 branch offices, and over 3000 clients. Plus I had on the average of three home and business inspections a day, to plot and graph with a written report. My most liability exposure was having so many vehicles on the road. I only had one claim in ten years, only $1014.00. I wrote the man a check and offered him a pickup to drive until his was repaired, we are still good friends.
I got off the track, anyhow I understand your view on this and my thanks for your comeback. It helps a lot to see those case studies. I know you guys get tired of answering my posts, but if I or any readers get any thing out of it, you should feel good about that, because it advances the proffession. This is where we get our real CEUs. |
Edited by - Newt on 01/22/2003 14:41:35 |
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inside man
45 Posts |
Posted - 01/22/2003 : 15:51:54
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Hey Clayton,
Is the stuff you come out with done after hours of research or does it come straight off the cuff?
If it is the latter you are one scarey dude...
Keep up the good work brother!!!
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CCarr
Canada
1200 Posts |
Posted - 01/22/2003 : 19:15:47
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Hey 'Inside', I am no doubt pretty scary looking and sounding first thing in the morning when my feet first hit the floor and I grope for my tobacco products. But thank you for your kind words of encouragement.
That is all I had intended to say, wanted to say more but wasn't going to, until a comment in that infamous "Is it Covered - poll forum" settled into my gut.
So for better or for worse, you can all take it however you want. I don't particularly thirst for going into the detail I did in this thread. I sometimes get the feeling - why am I doing this - for various reasons, and it tends to ice me to a distance sometimes from CADO. However, your comment and that of Newt's does renew my 'want to believe' that the core of CADO in general wants to further their 'horizons'.
Certainly 'the stuff' does in no way just roll straight off the cuff. I have only seen that and revered it from my past 20 and 25 years ago from the most respected defense lawyers I had the priviledge of working with in my carrier days.
However, I was very fortunate over the years, my carrier management days were with a company very heavy into commercial, with a large primary and umbrella liability book of business.
You cann't help but 'love' liability once you get into it - it is fascinating. Following my carrier days I got quite involved in risk management work, really it is the 'middle of the situation', bringing in some underwriting and loss control aspects from the front end, and the claims situations from the back end. In that regard, opportunities arose both from a pure loss control aspect and the more strategic risk management aspect, to work on hospitality risks - restaurants, resorts and golf courses.
That, with a pack rat mentality to never throw anything out thereby collecting over time a lot of useful material to refer to, plus a decent reference system and home library; one can gather together useful information most times to address the issues like was found in this thread. I'll be the first to admit I don't know everything, and in fact often enough you really wonder what you do know. However, the key is to know where to put your finger on the data that will provide at least a base to work on the answer.
Again, I had been reluctant to get into this detail today, in my mind because this is a 'property group', and still this morning only made a short one line response to Newt's further venture into this thread. After Newt then expressing his bafflement, I had some time and extracted what I needed from my collected resources; and frankly enjoyed doing that commentary.
What it does for me, is keep me on my toes and makes me search out possible answers or suggested solutions; allowing me to refresh and / or keep abreast of issues I may have not have dealt with in the immediate past.
So here I am rambling again, but it just seemed like an appropriate time to vent my thoughts. Contrary to beliefs expressed in that 'other forum', two weeks ago I was fairly certain I was going to walk away from CADO, as I felt there was little participation and even less real issues seemingly being discussed. I expressed that in a post or two at the time, it all boils down to finding little value in reading my own material, other than the useful exercise noted in the previous paragraph. What I am saying is, I'm not here to shoot my mouth off to sell you folks anything. I do it because it is my way of 'giving back'. Did you ever see the movie, "Pay it Forward"? |
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inside man
45 Posts |
Posted - 01/22/2003 : 20:42:24
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| Are you giving me your Jag then??? |
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Newt
USA
657 Posts |
Posted - 01/22/2003 : 21:54:07
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I wish I could work with some of you guys one day, I don't have that ready feeling yet. Its hard to keep studing for so long without being productive. The last venture took two years, and that was without a break except for a four day fishing and camping trip.
One thing going for me I wont need a big salary, health insurance, or retirement plans. I have all that taken care of. I will probably try a vendor for a helper job with a chance to grow. You can tell by the number of posts I make, sometimes a little dumb, but I commit to what ever I take on.
I remain that way until if by chance I get bored, I'll quit and that is not likely.
Clayton, I am still reading your posts on fire claims, I know you did a lot of work on that and believe me as far as I am concerned it is a valuable resource. At that time I was not prepared enough to participate. Only a few did and that was a shame. I think it was because you covered the subject so completely that no questions were neccessary.
I made up a pamphlet that I can study away from this one eyed monster for a change.
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