if a neighbor is liable for damage to my property, can I sue him even if my insurance company paid for the damages

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if a neighbor is liable for damage to my property, can I sue him even if my insurance company paid for the damages

Neighbor owns property next to mine, I own my property. He also owns more rental properties in the area. He has maintained the trees on other properties around the area, but not the tree next to my property that I own. A tree fell onto my garage causing a lot of damage. I asked my insurance company to contact the neighbors insurance company, the neighbors insurance said they will not pay. My insurance company sent me a check, but I feel it is not my insurance company’s place to pay. Can I sue the neighbor?

Asked on February 7, 2017 under Real Estate Law, Texas

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

You can sue, but--
1) To win, you'll have to prove that he was at fault in some way--the fact that it was his tree does NOT, without more, make him liable. He is only liable if he was negligent, or unreasonably careless. So if the tree were visibly sick, damaged, dying, dead, etc., so that it posed a heightened risk of falling, but despite that obvious heighted risk, he did nothing, that might make him liable--it is negligent to not address a clear risk. However, if there was no reason to think this tree represented a particular risk--so no reason to take steps to prevent it from falling, like trimming or cutting it down--he did nothing wrong and would not be liable.
(That, by the way, is what insurance is for: for compensation when there is no one to sue, because no one is provably at fault.)
Second, say that $5,000 of damage was done. If you actually cashed/deposited a check from your insurer for, say, $4,000, you could then only sue for $1,000--you can't double recover money, so you may only sue for any amounts not covered or paid by insurance.


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