Sep 15

Wildfire Property Damage

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Property Damage due to wildfire?

Montana has been experiencing one of the worst wildfire seasons ever. Many of the hundreds of thousands of acres which have burned have been on public land. But wildfire knows no boundaries, and sometimes results in damaged private property and structures. Homeowners’ insurance policies will typically cover losses resulting from wildfire, but, in certain situations, a property owner with damaged property may be entitled to proceeds from an at-fault party’s insurance policy. If the wildfire was started due to negligent human actions, you may be entitled to recover from both your homeowner’s policy and the at-fault person.

Negligent government action may also be to blame for your property or structure damage. A recent article in the Missoulian discussed this potential scenario: “Homeowner says backburn on Lolo Peak fire backfired, destroying his home,” by Eve Byron (Sept. 15, 2017).

What damages can be recovered?

Damages may include the obvious, such as a home, barn, or outbuilding. But damages may also include the less obvious, such as the loss of a private setting which you paid extra for when you purchased the property. Trees have value. The Montana Supreme Court has concluded there is no “one-size-fits-all approach to property damages.”  Lampi v. Speed, 2011 MT 231, ¶ 17.  The general measure of damages for all non-contract situations, is the amount which will compensate for all the harm caused, whether it could have been anticipated or not.  French v. Ralph E. Moore, Inc., 203 Mont. 327, 661 P.2d 844 (1983).  In general, the jury may award damages for land reclamation projects, including, but not limited to, replanting timber, grass and other necessary vegetation and erosion control.  See, e.g., Weaver v. State of Montana, 2012 WL 1978013 (Cause No. DV-02-25, Granite County, Montana) (jury award of $730,000).  Emotional distress damages may be awarded due to a defendant’s negligence.  MPI2d 15.03.

A plaintiff may also recover damages for diminished market value of the property, loss of trees, and the destruction of terrain.  See Heil v. United States, No. CIV. A. 91-A-59, 1991 WL 236851, at *1 (D. Colo. Nov. 6, 1991).  In certain situations, a plaintiff may also recover damages based upon trespass and nuisance theories, which also allow for damages for discomfort, annoyance, and inconvenience to the land owners, starting from the date of the loss and into the future.  Nelson v. C. & C. Plywood, 154 Mont. 414, 465 P.2d 314 (1970); French v. Ralph E. Moore, Inc., 203 Mont. 327, 661 P.2d 844 (1983); Restatement (Second) of Torts § 920.

If you have losses due to wildfire, and you believe that a third-party may be at fault, you should contact an attorney like Philip McGrady with experience in handling these types of cases.

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