As an insurance advisor to the tree care and landscape industries, I often receive calls from my clients in regard to using a neighbor’s yard to access their client’s property. Unfortunately, the call is usually reactive and a little too late.
In most of the cases I have discussed or have had to file claims for, the contractor has had a verbal agreement with either their client or the client’s neighbor prior to work being done. What always amazes me is that, after the project is completed, the neighbor seems to find property damage that did not exist prior. In some cases, the neighbor may have a legitimate complaint. But more often than not, the property actually was left in better shape than when the contractor arrived.
Too little, too late
I recently received a call from one of my clients who was clearly distraught and wanted to seek my advice. He began to tell me a scenario of being blindsided by the neighbor of a client after they had used the neighbor’s property to access the work site.
Prior to the work being done, the client and the neighbor met with the contractor to discuss using the neighbor’s property for access. It required going over approximately 100 feet of driveway to gain access. The contractor explained that they would need to bring in a six-wheel chip truck, a chipper and a wheeled lift. He explained that he would lay down mats as an additional precaution and also agreed to remove a single tree of the neighbor’s at no cost as a courtesy. During the conversation, it was brought up by the neighbor that the existing driveway was old and had some wear and tear and would eventually need to be replaced, so not to worry.
During the completion of the project, the contractors were extra thorough and, after removing the mats, cleaned the driveway with a high-volume blower. The cleanup exposed cracks that had been covered by weeds and grass for years. Upon noticing the cracks, the neighbor contacted the client who, in turn, contacted the owner of the tree company. As it turns out, the neighbor is now attributing the cracks to the vehicles going over the driveway, and is expecting compensation to repair or replace the driveway.
I asked the contractor if he had taken any pictures of the driveway or the property prior to accessing the work site or if they had an agreement in writing. The answer to both questions was no. Without any written agreement or proof of condition prior, this claim will end up in the hands of an adjuster, who will have no other choice than to settle for an agreed amount. The contractor’s concern was not if this would be covered by insurance, but how it would be viewed by the underwriters at the time of renewal.
Protect yourself
Below you will find a few simple steps that should be taken to protect yourself and your business prior to crossing a neighbor’s property to gain access to your client’s work site.
Accessing a work site through a neighbor’s yard should be a “last resort” and only considered if there is no means to access a work site through your client’s property. Consider cranes, climbers or whatever other means can be used to avoid involving a third party (the neighbor).
If deemed necessary, arrange a meeting with your client and neighbor to walk the property. Discuss concerns for all parties, and lay out a specific plan to use the neighbor’s property. Make sure to ask the neighbor if there may be any vulnerable underground tanks, utilities or unforeseen hazards they are aware of. If they are not certain, call CBYD (Call Before You Dig Inc.) to flag utilities and get a copy of an “as-built” plan for any current or abandoned tanks that may be underground.
Ask the neighbor for permission to take pictures for your protection, as well as theirs, prior to starting the work. Take multiple pictures and a video of the driveway and any areas you may have to access. Be sure to take pictures of any structures nearby, including the neighbor’s roof, gutters, etc. You also may want to consider sharing the pictures and video with the neighbor prior to entering the property.
If it is necessary to remove any undergrowth, brush or tree limbs, flag the foliage and consider possible loss of privacy or tree damage. This must be pointed out and discussed with the neighbor and your client.
Get it in writing
In some cases, a written, detailed agreement with the neighbor may be requested. This is a good business practice and can help to protect all parties. The neighbor also may request to be listed as an additional insured on a certificate of insurance (COI), if necessary. Speak with your agent prior to presenting any proof of insurance.
Once the agreement is reached, take all precautions to protect the property, including using protective matting in areas you will be driving over. Keep the neighbor informed of any damage you suspect may have been caused by your operations. Transparency goes a long way.
Once the project is complete, take the time to walk around the property with the neighbor to thank them, and review before and after photos if necessary. If they do have a complaint of possible damage, always try to resolve any issues that may come up on a timely basis, such as filling in ruts or repairing turf damage.
Summary
Being the owner of a tree-service company, you have invested tens if not hundreds of thousands of dollars in vehicles, equipment, training, labor, insurance, etc. Relying on a handshake or verbal agreement may be convenient. But the truth of the matter is, you are running a professional operation that requires administrative detail to protect your investment. Unfortunately, we live in a litigious society, and taking someone at their word has led to many lawsuits and court battles.
Although it may be a little more work, incorporating written agreements should be standard practice for all aspects of your operations. As an insurance advisor to the industry, there is not a week that goes by that I do not have lengthy conversations about situations that could easily have been avoided with the stroke of a pen.
Using the above simple steps will help protect you and your client from frivolous claims under your general or professional liability policy. By keeping your claims down and your loss runs clean, this may also help you at the time of renewal. With insurance premiums on the rise nationwide, implementing a simple document may ultimately save you tens of thousands of dollars – and a lot of stress.
Brian Fain is a licensed insurance agent who specializes in the tree care industry and represents Tree Insure by Ferguson & McGuire, an agency licensed in 48 states and a six-year TCIA corporate member company based in Wallingford, Connecticut.
