Q: We are one of the people devastated by the forest fires in British Columbia last summer. The fire started from our neighbour’s tractor and spread to cover some 15 acres, most of it on our property. A stand of old trees was destroyed. Several fire crews worked to contain the blaze. There have been a number of other small fires on the neighbour’s property.
Our insurance company is saying that our neighbour is not liable and that we would have to prove negligence on his part to claim damages. We are seeking information regarding damage claims in similar situations.
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A: There are two issues to be considered: do you have insurance and what does your policy cover, as well as the neighbour’s liability for damages.
As you have talked to an insurance adjuster, I’m assuming that you had coverage. The first thing to determine is what your own insurance covers. An insurance policy must specifically set out risks that are excluded. Insurance policies are subject to provincial insurance laws, which tend to be similar in most provinces. In the section dealing with fire insurance, B.C.’s Insurance Act (available on-line at www.qp.gov.bc.ca) provides that the contract covers the insured property against fire that has not happened due to riot, civil commotion, war, invasion, act of foreign enemy or hostilities.
Note that the act does not deny coverage simply because the fire started in the neighbour’s property. The act further provides that a policy will state “the indemnity for which the insurer may become liable.” Obviously, you would have to check your policy to determine if loss of trees and habitat are covered.
I hope that you have advanced your claim. The law requires that you give notice in writing of your loss “forthwith” and also that any legal action against the insurer for damages suffered must be commenced with one year of the date of loss. If there is some question about whether an insurance company is liable under a policy, I recommend consulting a lawyer as soon as possible.
If your loss is a result of your neighbour’s negligence, you can advance a claim against him. This claim can be advanced whether your neighbour has liability insurance or not. If your neighbour has insurance, his company may well defend the claim on his behalf. If he doesn’t have insurance it may be harder to collect if you are successful. In that case, you would have to hope that he has assets or funds sufficient for you to collect your claim.
However, while you can advance a claim against your neighbour, you cannot receive double compensation from your neighbour and your insurance company.
Under the principles of insurance law, if your insurance company pays out the claim, then it can make a claim against your neighbour and collect.
You are required to assist the company in making such a claim.
The fact that the fire started in your neighbour’s property does not automatically render him liable. One would have to show negligence or fault on his part.
Thus, if lightning strikes a stand of trees in the neighbour’s field, there would be no liability. On the other hand, negligence and fault are clear if the neighbour burns his trash when it is dry or there is a wind and he takes no measures to control the fire.
These examples are extreme. Most cases of negligence are far less clear.
Don Purich is a former practising lawyer who is now involved in publishing, teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
