Claim for property damage

richie.c

Hi,

We had a claim in with our insurance company for damage to our house due to subsidence. Now this has dragged on for 4 years and they just came back to us saying that the problem was pre-existing to when we moved in and therefore we are not covered.

What I was wondering can we now take the engineer to court who did the original site survey before we bought the property for not noticing that this problem existed.

Thanks for any help you can give.

gonk

This is not legal advice and I am not qualified to provide such advice but - do you accept the insurance company's assertion that the problem pre-existed your policy with them? How have they demonstrated this? Without knowing any details of your situation, the fact that it has taken them four years to come to this conclusion would seem to suggest it's not a straightforward case.

If you are at all unhappy with their decision, you have the right to make a complaint to the Financial Services Ombudsman's Bureau. There is no charge for doing this. If the Ombudsman finds in your favour, his decision and whatever monetary award he makes are legally binding on the insurer, unless they appeal to the High Court. (Equally, if he finds against you, his decision is binding on you.)

If it was me I would strongly consider making such a complaint - you have nothing to lose and potentially a lot to gain by doing so.

See here for details:

http://www.financialombudsman.ie/making-a-complaint/

richie.c

gonk wrote:

This is not legal advice and I am not qualified to provide such advice but - do you accept the insurance company's assertion that the problem pre-existed your policy with them? How have they demonstrated this? Without knowing any details of your situation, the fact that it has taken them four years to come to this conclusion would seem to suggest it's not a straightforward case.

If you are at all unhappy with their decision, you have the right to make a complaint to the Financial Services Ombudsman's Bureau. There is no charge for doing this. If the Ombudsman finds in your favour, his decision and whatever monetary award he makes are legally binding on the insurer, unless they appeal to the High Court. (Equally, if he finds against you, his decision is binding on you.)

If it was me I would strongly consider making such a complaint - you have nothing to lose and potentially a lot to gain by doing so.

See here for details:

http://www.financialombudsman.ie/making-a-complaint/

Thanks for that information I will look into it. We just want to try and gather as much information as possible to see what our options are.

The Insurance company had an engineer and an architect out to the house to survey the damage and apparently their decision was based on their reports, however they have told us that we are not entitled to a copy of these reports.

The engineer that was out seemed to believe that the damage was plastered over before we moved in and when he pointed out some of the things to me they did seem to make sense, so he did make a good argument for the case that the problem was pre-existing.

So I am still of the opinion that legal action against the original surveyor may be our only course.

Any feedback is greatly appreciated.

gonk

richie.c wrote:

The Insurance company had an engineer and an architect out to the house to survey the damage and apparently their decision was based on their reports, however they have told us that we are not entitled to a copy of these reports.

Well, that in itself is in my view very high-handed and dismissive. They're basically telling you to take it on trust that their conclusions are correct without furnishing you with any evidence. Even if they're right, it's a very arrogant way to deal with a customer.

UrbanFox

This is not technical or legal advice but is merely intended to stimulate thoughts.

OP, as the claimant under the policy, carries the onus of proof to establish that an insured peril (subsidence in this case) has operated.

As far as insurers are concerned the next step for OP is to either dispute or accept their decision.

The policy probably provides that disputes have to be referred to arbitration. There is probably a time limit defined within the policy within which to refer the dispute to arbitration or the claim might be deemed abandoned. I think that you cannot issue legal proceedings against insurers if there is an arbitration clause as that blocks the jurisdiction of the courts.

There may be complaints procedures available from the financial Ombudsman but I am not sure if that will actually deal with the core issue of whether or not an insured peril has operated as distinct from the manner in which the claim has been handled. This should be clarified with the Ombudsman's office as OP needs to be sure what jurisdiction they have and what OP thinks that they are actually going to do for him. OP does not need further time wasted thinking that they will actually be dealing with the core issue only to find otherwise.

I agree that OP should certainly should make a complaint to the Ombudsman. The time period of four years to make a determination on this claim was most unreasonable and unprofessional. However, this is a separate issue from that of whether or not the insurers are actually liable to the OP.

Watch the time limit mentioned above. When insurers repudiate a claim under a policy time starts running for purposes of commencing arbitration proceedings. The fact that OP may have a complaint to the Ombudsman running as well may not stop this time limit.

The insurers are probably within their rights to retain the architects and engineers reports as they are their evidence. However, if there is a formal arbitration against the insurers it might be possible for the OP to obtain those reports by way of the discovery procedure.

For the record, OP should ask the insurers, in writing, to "voluntarily discover" their reports and if they are not prepared to do so to explain the grounds on which they base their decision. Make sure to get a reply in writing and do not be fobbed off by telephone answers. The latter have a curious habit of changing in detail by the time matters come to trial !! Sorry, that was a bit cynical but it is also true.

The question of a claim against the surveyor is a live one. The central issue is whether the defect in question could have been discerned by the exercise of reasonable care and diligence by a competent surveyor. If it could have been so discovered that raises an arguable case of negligence against the surveyor and is something to be dealt with by the surveyor's professional indemnity insurers.

Incidentally, it might be possible to seek discovery of the engineers and architects reports from the insurers in the context of the proposed claim against the surveyor. I think that it is possible to obtain discovery against parties who are not a party to a particular piece of litigation but who may hold relevant evidence. However, this is one for the lawyers.

A few extra thoughts to finish.

What about the original sellers of the property that OP bought ?

OP says that the insurer's engineer pointed out that the problem areas were plastered over. I think that the previous owners might need to be approached for two reasons. They might have some personal liability IF they deliberately arranged to conceal a defect in order to sell the house on to OP. They will probably say that they have no responsibility as OP had a survey done and did not find the defect. However, if there is any question of fraudulent conduct on their part I do not think that they can offer that excuse ! Secondly, it would be interesting to know what they have to say about the condition of the house as they might be able to give OP corroborative evidence to say that no defect was discernible as at a certain date or they themselves may have surveyors' reports that could prove helpful to the OP against his insurers.

If OP's insurers could be persuaded to reconsider and accept the claim there would be two benefits. Firstly, OP gets paid for remedial work. Secondly, the insurers could fund the costs and risk of pursuing the allegedly negligent surveyor for recovery of their outlays. There are some technical contradictions in this point but I won't bother with that level of detail !

As part of OP's complaint about the insurers he could also indicate an intention to hold them liable if their unreasonable conduct in delaying their decision has in any way prejudiced the OP's claim against the allegedly negligent surveyor. This could arise for a few reasons. This threat would also need to be communicated directly to the insurers. Incidentally, time to issue proceedings against the surveyor is also running against the OP.

IN CONCLUSION, this is a horrible situation for the OP who is the victim. However, pursuing some of these issues can be very time-consuming, detailed and shockingly expensive. A failed legal action could have disastrous consequences. Above all, do not end up making a bad situation worse !!

WHAT TO DO ? Consult a solicitor now. Make sure it is a solicitor who is experienced and competent in the areas of insurance law and professional negligence. Most importantly of all get written estimations of the likely legal costs involved in undertaking the work required before anything is done or you might need another mortgage to pay for it !

Best of luck with it.

richie.c

Wow that's a lot to take in, thanks for taking the time to do that. I will contact a solicitor at the start of next week and discuss it with them. You don't know any decent solicitors in the Kildare area by any chance.

Again thanks very much for the feedback

Richie

UrbanFox

Sorry Richie but I know very little about solicitors in Ireland and even less about the ones in Kildare ! Just be very careful how you go no matter where you find the right solicitor and pay particular attention to incurred costs !

Incidentally, I expect that one of the first things that your solicitor will do is to obtain your own enginering evidence. I suppose a structural engineer would be the appropriate expert. It would be interesting to see if your solicitor comes up with this suggestion first without prompting.

This is probably also where the expense will start to be incurred. However, if you get your own engineering opinion it should enable you to form a view on how good your prospects are in relation to the issue of the cause of the damage.

Irrespective of the above I think that you also have good cause to complain about the insurer's conduct of the handling of your claim.

Tread warily and good luck with it.