Officer’s plea that landscaping includes tree removal fails

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A New Jersey insurance agency failed to convince two courts that a landscaping insurance policy for a longtime client was ambiguous enough to also cover tree cutting.

The agency also struck out its argument that the tree-cutting coverage existed because the landscaper paid a premium based on his total earnings which included tree-cutting services.

The political dispute arose in a case involving a wrongful death. Two workers from RML Construction, Inc., which had a $1.8 million contract to remove trees damaged by Super Hurricane Sandy, were in a New York City park cutting down a damaged tree when Jing- An Liu was hit by a falling branch or trunk while riding his bicycle. Liu later died of his injuries. Liu’s estate filed a wrongful death lawsuit against RML, its two employees, and the City of New York, alleging that their negligence caused Liu’s injuries and death.

Gotham Insurance Co., affiliated with ProSight Specialty Management Co., refused to cover the wrongful death claim against RML on the grounds that RML’s landscape insurance policy did not cover tree removal. The company pointed out that tree pruning and felling were not permitted classifications under Gotham’s trade contractor program.

RML sued Gotham for defense and indemnification in Liu’s action, and also sued its longtime insurance agency, Suburban General Insurance Agency, for malpractice.

Suburban filed a counterclaim against insurer Gotham for indemnity and contribution, claiming that RML should be covered because the term landscaping was ambiguous.

Gotham explained that the ISO form for landscape gardening – Classification 97047 – clearly states that this classification involves beautification work such as design, soil preparation including plowing and fertilizing, planting seeds, d shrubs and small trees as well as interior landscaping. Tree maintenance operations, however, are covered by an entirely separate code -Classification 99777- entitled Tree Pruning, Dusting, Spraying, Repairing, Trimming, Fumigating. This classification involves the removal of dead, dangerous or unwanted branches, as well as the chipping, removal and cleaning of fallen branches and other debris. This involves the use of chainsaws, pruners, chippers and other similar devices, which Gotham’s investigation found were used by RML.

The trial court sided with the insurer, finding that Gotham did not owe RML insurance coverage for its involvement in the tree-removal accident that killed Liu. Rejecting Suburban’s argument that the term landscaping was ambiguous, the trial judge concluded that it would be “a tortured interpretation to say that the removal of 2,000 trees in multiple locations under a [nearly] A $2 million contract is landscape gardening.

The agency, Suburban, appealed, again alleging that the wording of the policy was ambiguous and should therefore have been resolved in favor of the insured and that the classifications were broad enough for landscape gardening to include felling of trees. Suburban claimed that Gotham did not include a definition of landscape gardening in the policy and that its representatives could not define landscape gardening.

Suburban’s agent acknowledged that he never told Gotham that RML was removing trees. He agreed that a broker should explain to an insured the meaning of a classification code and acknowledged that it was Suburban’s responsibility to verify that the correct classification code was included in RML’s insurance policy.

Nevertheless, the agent said that the cover should also apply because he believed that RML’s premium was calculated on the basis of RML’s gross receipts, income which was partly derived from the felling of trees by RML.

According to the Gotham insurer, the insurance agent is responsible for explaining the classification codes to the insured and Suburban should have known that the classification for landscaping does not include tree cutting. Its specialist contractor program did not cover any arborist classification, although landscape gardening included “light pruning of small shrubs and trees,” the insurer explained.

Consistent with the trial court’s finding, the Superior Court said Gotham was not required to provide a definition in the policy for landscaping “nor was it required to provide a definition for painting steel bridges or concrete structures A common-sense interpretation of landscaping does not include large-scale tree felling.

Regardless, the court added that the ISO form defines the term and that although the insurer’s representatives acknowledged that there was more than one definition of the term, no definition included the term. large-scale tree felling.

Additionally, the Court of Appeal rejected the bounty argument because tree felling was not a permitted classification and the bounty was purely based on RML’s gross receipts, disregarding the type of work done.

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Terri S. Tomasini