Any logger has the potential of being involved in an accidental timber trespass claim. Here are some things you need to know:
What are you agreeing to when you sign a contract?
Landowners generally require a logger to have general liability insurance and to assume responsibility for everything that happens at the work site. Many landowners also require that they be named as an additional insured on the logger’s policy.
The standard language of a general liability policy provides potential coverage for liability you assume by contract to the same extent it would respond to your own losses. If a landowner is named as an additional insured on your policy, not the landowner’s, will likely respond to claims made against the landowner so long as the claims arise out of your job. This expanded risk can impact your loss history, what you pay for coverage and your insurability.
Does your policy cover timber trespass?
While the general liability policy typically does not respond to criminal charges, there may still be coverage for damage inflicted on the property itself. Check your policy to see if there are any endorsements regarding timber trespass. Your policy may contain an endorsement that excludes liability for damages arising out of timber trespass. Or, the policy may contain endorsements that exclude such liability, but give back restricted coverage at reduced limits. A survey referenced in the 2008 Timber Theft in New York Legislative Briefing* indicated that the average settlement for a timber trespass claim in that state was $10,650, including settlements as low as $1,000 and as high as $70,000. These claims are usually settled based on stumpage (or the number of trees cut), so where you work has an impact on loss potential. If you’re not comfortable with the policy limits available to you for timber trespass, or if your policy excludes timber trespass, or is silent on the subject, you may wish to contact your agent to get coverage clarification and to discuss your options.
If your current insurer cannot provide you with the potential coverage you need for such timber trespass claims, your insurance agent or another agent may have access to insurance companies that can. Some insurers include this coverage automatically for full policy limits at no additional charge.
How can you avoid a timber trespass situation?
If you are a logger, felling trees at or near any marked or unmarked property lines, here are some tips to reduce the risk of unknowingly removing trees which do not belong to your customer:
- Work with a signed, written contract between you and the landowner that specifies who is responsible for any errors in marking boundaries and/or trees for removal. You may wish to consult with your attorney before signing any contracts. If the landowner takes responsibility for the boundaries or marked trees, it will help you defend yourself if an overcut occurs. Remember, however, that if the landowner is named as an additional insured on your policy, your policy may have to respond for him to the same extent it would respond for you.
- If feasible, have a licensed forester or surveyor mark the property lines before you cut and be sure he or she has professional liability insurance. That person should not be an employee of yours or of the landowner. This way, if an error in marking the boundary occurs and you’re named in a timber trespass claim, the forester/surveyor’s policy may be on the hook to pay any resulting damages, rather than your policy.
- Attempt to contact the abutting landowner(s) before the cut and walk the boundary with them to agree on line locations, whenever possible. This is a good idea even if a professional has already marked the property lines, but is essential if that has not been done.
- Use GPS to lay out the cut. Transfer the information to the processor or fellerbuncher if yours is a mechanized operation. If you are a conventional operator, use the information to clearly mark boundaries for your hand crews before any work begins. Whichever type of operation you have, be certain your employees at the work site understand how to tell where the property lines are.
- Retain all documents until all applicable statutes of limitation have expired. You may wish to ask your attorney to assist you in determining how long that should be.
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Acadia is pleased to share this material for the benefit of its customers. Please note, however, that nothing herein should be construed as either legal advice or the provision of professional consulting services. This material is for informational purposes only, and while reasonable care has been utilized in compiling this information, no warranty or representation is made as to accuracy or completeness. Recipients of this material must utilize their own individual professional judgment in implementing sound risk management practices and procedures.