Q. We were served with a claim. We hired an arborist to remove a tree and a branch fell on neighbor’s air conditioning unit, causing it to break. The neighbor is now suing for a new unit, both the arborist as first defendant and us as the second. Please advise. Thank you
This case requires consideration as to the merits of the claim as well as who should be named as a Defendant.
Your first plan of action should be to assess the actual basis of the claim by asking yourself questions such as:
1) When did the incident happen?
Under the Statute of Limitations, one has until the second anniversary of the date in which a claim was discovered, to file a claim. Perhaps the incident happened over 2 years ago in which case you can argue that the owner is out of time.
2) Were there any witnesses who saw the branch fall?
Who says the incident even happened? Can the neighbor prove that a branch fell on the unit?
3) Did the falling branch actually cause your neighbor’s air conditioning unit to break?
Perhaps the unit was already in a poor state of repair and the neighbor is using this as an excuse to repair his air conditioner at your expense.
4) What was the positioning of the unit?
Was your neighbor’s unit overhanging onto your property? If so, then perhaps there is no merit to the claim because even if the branch did fall, it was reasonable to fall onto your side of the property. It is not your fault the unit was encroaching onto your property.
If your answers to the above are that there were no witnesses who saw the branch fall, the air conditioning unit was 20 years old and the unit was on your side of the property, then you likely have a strong defence on the merits.
Assuming, however, that the claim is reasonable and that the branch was negligently cut which cause the unit to break, you have to ask yourself if the owner of the unit took steps to mitigate, or lessen to the extent possible, his damages.
For instance, did the owner bring the air conditioning unit to get repaired? If not, and the unit could have been repaired rather than replaced altogether, you can argue that the damages should only be for the cost of the repairs and not for a complete replacement of the unit.
Alternatively, even if repairs were impossible, if the owner did obtain many years of usage of the unit, he should arguably not be compensated for the full replacement value and some depreciation should be taken into account.
Moreover, if the owner of the unit had insurance, then he would be expected to report the matter to his insurer and then claim against you for the cost of his deductible only. (Note, if his insurance premiums rise as a result of this claim, he can arguably claim against you for the increase in his premiums.)
Once you have analyzed the merits of the case, you have to determine if you are the one liable. The owner may claim that you were negligent in not overseeing the arborist properly or simply on the grounds of vicarious liability (liability for work done by someone under your employ).
It is quite possible you can be found liable for vicarious liability, but you should be able to file a Defendant’s Claim (cross-claim in this case) against the arborist for full indemnification. This is because you can argue that you relied on the arborist’s expertise to do the job right.
However, claiming indemnity against the arborist is small consolation because even if the owner obtains judgment against you and you against the arborist for indemnity, he can collect his judgment from you even if you are never able to collect from the arborist. Unfair, but the reality of small claims court.
Another issue with suing the arborist is that you may anger him and lose the power of numbers whereby being on the same “team” as him can allow you two to mount a strong defence against the one owner.
However, because you likely would succeed against the arborist, in my mind you must protect yourself in the event you lose against the owner. It therefore behooves you to indeed file a Defendant’s Claim against the arborist. But, you should try and contact the arborist, explain to him why you are filing the Defendant’s Claim and tell him that it is still in both your best interests to be united against the owner. You should explain that any ill the arborist harbors for being counter-claimed should be set aside in the common interests of successfully defending the owner’s claim.