The 'Pure" Tree Service: Errors & Omissions Insurance for a Non-Consulting Arborist

Issue: 
November-December 2007

THE TREE BUSINESS PROVIDING FELLING, pruning and other ‘workmanship’ only services should consider its risk exposure to allegations of errors and omissions. While there will not be as many of the issues that concern a consulting arborist, some are still very applicable. Most notable are those that relate to ‘omission’ matters, as committing an ‘error’ is less likely when an opinion was not requested. It is important to recognize that ‘omission’ legalities can and do arise from circumstances not forming part of the client’s service request. As professionals (at least in the client’s eyes), allegations might be brought forward suggesting that expertise, such as a recommendation or warning, should have been shared. It is especially important to appreciate that even if a court later determines that there was no legal obligation to express an opinion, the cost to defend such a suit can be costly. Even getting a case dropped can be expensive!

The ‘Non’ Hazard Assessment
A common concern relates to the potential for lawsuits suggesting that comments on trees ‘not part of the job’ should have been provided. While most arborists will contend that they cannot afford to inspect or otherwise review all the trees on a client’s property when hired only to attend to a specific tree, it is possible that an ‘uninvolved tree’ causes some subsequent harm and initiates a liability situation.

As an example, a tree service is hired to remove tree ‘A.’ The work is performed without incident. However, later tree ‘B’ fails resulting in injury, damage or other loss. Could the client accuse the arborist who performed the earlier work on tree ‘A’ of failing to observe, notify or otherwise warn that tree ‘B’ was a concern? Absolutely! There are principles in law whereby a ‘duty of care’ is owed to the public to share knowledge and expertise even where this was not requested.

In insurance services, we can’t ignore a concern simply because a client hasn’t asked for an opinion about it. For instance, a tree service that asks for review of their fire insurance may also have risks that we morally, and potentially legally, can’t leave unmentioned. Even if the matter were not noticed, there is still chance of blame on the basis that we should have noticed. Arborists need to appreciate that the same legal principles apply to them. However, do recognize that negligence does still need to be proven. Was it or not reasonable for the arborist to have provided a warning?

Accidental Trespass & Wrongful Practices
Most tree service operations carry commercial general liability insurance and assume this to be adequate coverage. However, there are weaknesses where insurance against errors and omissions may be necessary to fill gaps and provide better overall protection. Two issues (and there are more) applicable to the ‘pure’ tree service are matters not clearly addressed by the commercial general liability policy.

The ‘property damage’ section of a commercial general liability policy can be vague, open to differences of interpretation on exclusions or definitions that can adversely affect an arborist if the wrong tree is intentionally damaged or destroyed such as during an accidental trespass situation. Although the tangible value of the tree may be covered by the policy, the intangible value (i.e. loss of amenities – shade, privacy, windbreak, etc.) may not, depending on the circumstances involved. Protection for errors and omissions will provide financial loss liability related to intangible harm. Errors and omissions also insures against liability for intangible harm due to alleged wrongful arboriculture practices such as tree topping or excessive pruning.

— Scott McEachern, Program Executive, TREESURE provided by: Hugh Wood Canada Ltd., smceachern@hwcanada.com

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