What to sign away when seeking restitution for negligence

[jack]

Those who've followed my saga will know that we had some leaks in our flat roof a few months ago.

 

In the end, it transpired that the roof covering failed at 4 out of the 5 of the aluminium outlets through our parapet wall.  I haven't had a clear explanation of what caused these problems, but I'm not sure the installer knows entirely himself.

 

All outlets (including the one that didn't fail) have now been replaced with plastic and seem to be holding up well.

 

We're now at the point where we've had quotes for repairing the damage.  This involves repairing and replacing the airtightness membrane, repumping cellulose insulation, tidying up and re-boarding the affected ceilings, skimming and painting.

 

To their credit, the roofing company have immediately agreed to the quotes we sent.  What I'm less happy about is the wording of the document I'm being asked to sign in return.  It basically says that what they're paying is in:

 

"full and final settlement of the repair works to water damage caused at ... . This offer is made on the clear understanding that, if accepted, neither you nor any associate company will take any other action to enforce or pursue further claims and costs in any way whatsoever and that we will be released from any liability."

 

I queried this, as read one way it could be interpreted as releasing them from liability from anything going wrong with the entire roof.  They confirmed in reply that it's only in relation to the current water damage.

 

I appreciate that they want to limit their future liability in relation to this matter.  However, I'm concerned that I didn't see the state of the timbers when they replaced the outlets and covering membrane.  I'm not able to tell whether the leak got further than it appears it did (eg, what if water dripped down inside the wall without us knowing?)  In the absence of having someone who really knows what they're talking about do a fairly invasive review of what's happened, I don't see how I can meaningfully sign away these rights.

 

My plan is to go back and more or less say to him that I won't sign away liability unless they also pay for an expert review and report.  Alternatively, I'll agree that this is the final costs for damage that I have personally been able to identify (and list exactly what that is).

 

Thoughts?

[TerryE]

Jack, the key issue is that this isn't about right or wrong from their PoV, it's more about limiting liability.  It looks like they've screwed up and you are the damage party.  In essence you've got two options: (i) to come to a settlement, or (ii) to go the whole 9 yards and seek a judicial determination. 

 

In terms of (i) as far as I can see the company are putting up their hand and saying that they've cocked up and want reasonably to remedy this, but the sting in the tail is that at the same time they want to draw a line under the whole issue so that from their underwriters' viewpoint the whole issue is closed.

 

The alternative (ii) is to go into righteous battle, and the problem here is that the courts can be fickle especially if one party has in its view made a reasonable attempt at reconciliation / settlement.  The danger is that you lose or achieve a Pyrrhic victory in that you win in principle but that you don't recover full costs and the residual legal costs leave you worse off.

 

I am not an expert here but in my view the best option for both of you would be either to accept their offer or alternatively to go back with reasonable counter offer suggesting a few  well argued and (by independent assessment) reasonable tweaks; I would suspect that you've got at most one bite at this cherry.

 

My suggestion is that you get what you can quickly and move on with your life and your project. 

 

 

[Ferdinand]

I think you could perhaps get the company to write a cover letter to explain that limitation of the denial of liability, which would then be an effective part of the contract.

 

I think that technically your question, their email and your acknowledgement of that email would be good enough for a court.

 

But a pair of specific letters being their covering letter including a signature from presumably a director and your acknowledgement of that letter ideally with signed for delivery would be a good thing to have. ANd easier to get than a change in the contract.

 

Ferdinand

Edited October 26, 2016 by Ferdinand

[ToughButterCup]

9 hours ago, jack said:

[...]

My plan is to go back and more or less say to him that I won't sign away liability unless they also pay for an expert review and report.  

 

Thoughts?

 

Completely reasonable. Use the same model as that employed for the Party Wall Act

[jack]

9 hours ago, TerryE said:

Jack, the key issue is that this isn't about right or wrong from their PoV, it's more about limiting liability.

 

Agreed, hence my comment:

 

10 hours ago, jack said:

I appreciate that they want to limit their future liability in relation to this matter.

 

I understand why they want to do this (indeed, their insurers may require this behaviour from them), and I'm happy to put a line under this myself.  What I'm after is opinions on what's reasonable for me to ask for or expect in the circumstances.

 

As it is, I haven't asked for compensation for the two days I spent on a ladder dragging sodden newspaper insulation into bags and driving them to the tip, or for the hours spent trying to figure out what had happened to cause the leaks, or for the inconvenience of having to abandon our bedroom for weeks while everything dried out, or the 20-30 vacuum cleaner bags we've gone through cleaning up at various points along the way.  I haven't even allowed for the cost of replacing a small area of plasterboard in the garage, because we have a spare bit hanging around and can do it ourselves easily enough.

 

Compounding my frustration, some of you may remember that I had queried the adhesion of the membrane at these joints when the job was first done and was repeatedly assured that everything was fine.

 

I have no interest in punishing anyone, or of making money on the situation.  I just want to be put back into the situation we would have been in had these leaks not happened.  As I'm not an expert, I can't assess the longer term risks.  That's why I suggested getting an expert involved.

 

10 hours ago, recoveringacademic said:

Completely reasonable. Use the same model as that employed for the Party Wall Act

 

Thanks Ian.  I'm genuinely trying to be reasonable (and so, in general, is the roofing contractor), but it's hard to be objective.

 

[Declan52]

I think you are being more than reasonable with them. Just explain it like above that you have no intention of milking then but want a 2nd opinion and if that comes back all hunky dory then you will sign whatever needs signed. 

Just say that your house insurer is requiring it otherwise you can't get any future protection on that part of the house, as they can be a bit funny with flat roofs.

[ToughButterCup]

13 hours ago, jack said:

 

I have no interest in punishing anyone, or of making money on the situation.  

 

 

Ah stop being so damn reasonable man!

[jack]

3 hours ago, recoveringacademic said:

 

Ah stop being so damn reasonable man!

 

Actually, I may be the worlds' most passive aggressive person!

[jack]

Thanks all for the comments.  Playing phone tag with the roofing company at the moment but hope to speak to the managing director tomorrow.

[jack]

Update on this:

 

In the end the roofing company decided to put it through their insurance.  

 

After three months of being dicked around by Aviva (I'm happy to name and shame them given their appalling attitude to date), they've finally come back with the following in response to a detailed timeline, photos and explanations, including pointing out that their client had admitted liability:

 

"It appears that to date you have not provided any evidence into the cause of the leaks.  You have only provided pictures of the damage and your assumptions of the cause of the leaks.

 

You have not provided an independent expert report  to confirm the cause of the leaks.

 

Our Insured states they don’t know what caused the leaks from the aluminium outlets but don’t feel it was an installation error. They state it could have been caused by many sources.

 

The onus is upon you as the claimant to prove your claim.  

 

I look forward to receiving expert evidence from you.

 

I would also remind you that you are at liberty to seek legal advice in the pursuit of your claim.  You are able to seek legal advice from a solicitor or from your insurer and any other legal professional.  Alternatively, you are able to seek legal advice free from your local Citizen Advice bureau."

 

Just to be clear, the roof installer has repeatedly put in writing that the cause of the leak is the scuppers they provided and installed.  Examples:

 

18 October 2017: "If unfortunately, another leak occurred; <we> would inspect and deal with accordingly. I am confident that the new scuppers installed will be totally fine. It was the aluminium scuppers which seems to have caused this unfortunate problem. We have since installed pvc scuppers and as I understand there has been no further problems." (ie, source of problem admitted)

 

13 October 2016: "Please find attached our agreement [for internal repair works]; as we would like to settle without using our insurance company." (ie, liability admitted)

 

11 July 2016: "Regarding the damage work; can you please get some quotes and depending on the cost we can make a decision as to whether you need to claim through our insurance company." (ie, liability admitted).

 

10 March 2016: "We’re all still baffled as to why the liner is leaking." (ie, admission that the leak is related to their installation of the liner/scuppers)

 

My plan is to forward these quotes to Aviva and point out that their client has already provided evidence of fault.  I'd say that the evidence I've provided so far, in conjunction with their client's admission, must at least put the ball back in their court for rebuttal.  

 

I also don't understand this statement: "Our Insured states they don’t know what caused the leaks from the aluminium outlets but don’t feel it was an installation error. They state it could have been caused by many sources."  If I read this correctly, it appears they're admitting that the leaks came from the outlets supplied and installed by their client, but are trying to avoid liability by saying it wasn't an "installation error".  Surely if you supply something and it fails despite you installing it correctly, you're responsible for the damage caused?

 

Bear in mind that the total costs they're up for are something like £2000-2500.  I'm really surprised that Aviva is behaving like this, but maybe I'm expecting too much from an insurance company.

 

Anyone have any thoughts about the best way to tackle this?  

[Jeremy Harris]

Sadly I rather think this is the standard line from many insurers.  It sounds very like my experience of trying to make a claim on an NHBC warranty years ago.  My lawyer at that time advised that they were very likely to just keep delaying things until we gave up, as apparently many people do just give up in the end (we did - we paid to get the defect, also a roof leak, fixed ourselves and I made good all the internal water damage).

 

You could try the small claims track in the county court, with a claim against the roofing company.  Quite why you're having to deal with their insurer I don't know, as the issue is between you and the supplier, isn't it?  It should be the supplier dealing with their insurer, not you, I would have thought, as it seems it was their decision to hand the claim over to them, not yours.

 

As for Aviva, all I can say is that they are a shambles, in recent experience.  We have had contents insurance with them since they were Norwich Union, and because the premium wasn't much I never bothered to shop around.  Last year I started getting odd letters from Aviva asking me if we were insured with them.  I rang them, rather concerned that they had my name and address but didn't seem to have a record of the long-standing policy we'd had with them.  They explained that they had "been having problems with transferring policy records due to a new computer system", apologised and confirmed that we were insured with them.  Just before Christmas we had the same letter arrive again, asking if we had a policy with them and if so to contact them.  I went through the same rigmarole, but this time I was a damned sight more angry.  They apologised again, and said they had, once more, updated their records, and as a good will gesture they knocked £50 off this years premium.  One things for sure, I not even going to think about renewing the policy with them again, as I have this horrible feeling that if we ever made a claim they would try and deny that we were insured by them......................

[jack]

18 minutes ago, JSHarris said:

Quite why you're having to deal with their insurer I don't know, as the issue is between you and the supplier, isn't it?  It should be the supplier dealing with their insurer, not you, I would have thought, as it seems it was their decision to hand the claim over to them, not yours.

 

I don't know, I've never had to make an insurance claim involving a third party before.  I've just followed their lead.

 

I read similar about Aviva when I was doing some research recently before renewing my car insurance.  You can be sure that between that information and what's happened here, I'll never insure anything I own through Aviva.

[Jeremy Harris]

I'm pretty sure that normal consumer law applies here, so that the responsibility for resolving the problem rests with your supplier, as it's them you had the contract with.  If they've chosen to ask their insurer to handle this, rather than them pay you themselves, then it is up to them to deal with their insurer, not you, I would have thought.

 

The claim is well inside the small claims track limit, and you can do the whole job of making your claim online, for a reasonably modest cost, and you can, I believe, include those costs in your claim.  I've only ever once had to resort to using the small claims court, as it used to be known years ago, and even then it was a very straightforward thing to do yourself, with no real need for a lawyer, as there is usually no formal court hearing, as such. 

 

In your case you have more than enough evidence, from the sound of things, so it would be just a matter of submitting that with the claim details and letting the court sort it out.  It's quite rare for there to be a formal hearing; in my case the informal hearing took less than half an hour, sat around a table in a room at the back of the court building, with just the recorder, myself and the person representing the company I was claiming against.  There was no hassle or unpleasantness, and no legal language, the recorder just stated that he'd read the claim details and evidence from both sides, had concluded that the claim was justified and gave directions for the company to pay the full cost of my claim plus the court costs.  No evidence was heard during the hearing and the company were given 14 days to respond, IIRC.  They just sent me a cheque within a week, and I then had to write to the court telling them that the matter had been settled.  I believe that, by paying promptly, the company concerned avoided having a judgement formally recorded against them, which was almost certainly why they just paid up.

[jack]

Thanks Jeremy.

 

I agree with all that, and will take action via small claims if necessary.

 

At the moment, my main concern is how best to approach the insurer and/or the roofer, and in what order.  

 

I don't know how much of this initial response from the insurer is actually the insurer's doing.  When asked, he could well have said "I don't know why it leaked", and this is an accurate statement of his position (he and the guy who did most of the installation work were both honestly surprised at the way the outlets failed, and couldn't put their finger on exactly what went wrong).   The insurer could well have taken this statement and is now running it to avoid paying up.

 

Given that it's now been repaired, it will be very difficult for any expert to prove or disprove what caused the leak.  Again, I suspect this is a tactic by the insurer.

 

Anyone else have thoughts about the next best step?

[jack]

Update on this (and looking at the date of the post above I can't believe how long I've sat on it!):

 

We eventually managed to get everything repaired and have picked this issue back up with the roofing company in the last few days.

 

I forwarded them the reply we had from the insurer. They were (understandably) surprised hear from us after so long, and had assumed the insurers had dealt with the issue last year. They said they'd get back to the insurer to confirm what had happened.

 

A day later, I've just received the following:

_______

"Our broker has looked into this for us by contacting the Insurer Aviva and the reply from Aviva was Aviva did not receive a reply to the correspondence sent to you on 06.03.2017 so after some time Aviva closed the case.

 

We have been advised to ask you to please redirect your claim to Aviva by contacting <name of useless person at Aviva we were already in contact with> and quote reference <blah> so Aviva can pick up your case.

 

It needs to be pursued this way as we have gone down the insurance claim route. Aviva have all the information from <supplier>. So I assume Aviva need a reply from your side explaining the problem then hopefully all can be resolved."

_______ 

 

Aviva clearly don't have "all the information" from the supplier (or they're lying), otherwise they wouldn't have come to the conclusion above.

 

At this stage, my main interest is in getting a definitive answer to the question of whether they're able to require me to go via their insurer. As @JSHarris says above, my (consumer) contract is with the supplier, not the insurer. However, it's possible that, by going the insurance claim route, they're implicitly appointing the insurer as their agent to handle this matter. This would be analogous to requiring me to communicate with them via their lawyers. I can't even think where I'd go for a definitive answer on such a thing, short of speaking to a lawyer with an insurance specialisation.

 

Of course, if I wanted to escalate this to small claims, then I'd be suing the supplier directly, and for the amount I'm seeking I doubt the insurer would get involved.

 

Any thoughts? I have strong preference for not dealing with this issue via the insurer, partly practical and partly because the person we were communicating with at the insurer is a twat.  

[Jeremy Harris]

@jack, I think you really have three choices at the moment.  You could choose to use a mediation service ( http://civilmediation.justice.gov.uk/ ) and see if that resolves things without you needing to deal directly with the insurer  You could just file a claim online against the supplier, using the small claims track, which is fairly easy to do if your claim is for a fixed sum ( https://www.gov.uk/make-money-claim ), or you could send a registered letter to the supplier, telling them that you refuse to deal with their insurer, as is your right in law, and that they have a fixed period of time to settle the outstanding claim or else you will be making a claim via the small claims track.

 

If it were me then I would avoid dealing with their insurer, and insist on dealing with the company directly.  Their insurer will try every trick in the book to slow the process and avoid paying out - I do work for some insurers and have seen first hand how they try their damnedest to avoid paying out.  The "incompetent staff" trick is often just that.  They try to make sure that anyone dealing with a claim by one of their clients customers seems to be less than competent, with documents being "lost", emails being claimed to have been sent when they weren't, phone calls made that weren't, you name it.

[jack]

Thanks Jeremy, this is exactly the approach I have in mind (except for the mediation bit, as there's no dispute over the general cause of the leak nor of the damages involved).

 

28 minutes ago, JSHarris said:

... or you could send a registered letter to the supplier, telling them that you refuse to deal with their insurer, as is your right in law

 

That's the big question though - is it actually my right in law? A firm answer to that would make me a lot more comfortable with pushing back.

[Jeremy Harris]

1 minute ago, jack said:

That's the big question though - is it actually my right in law? A firm answer to that would make me a lot more comfortable with pushing back.

 

Best bet might be to ask Citizens Advice on this.  Often they have access to a pro bono solicitor who will give 30 mins of advice for free.

[jack]

6 minutes ago, JSHarris said:

Best bet might be to ask Citizens Advice on this. 

 

Great minds - I was just looking up the details of the person I spoke to there when this all kicked off last year.

[Jeremy Harris]

On the couple of occasions I've used Citizens Advice they were great, but that is some time ago.  I found this link that may help: https://www.citizensadvice.org.uk/consumer/getting-home-improvements-done/problem-with-home-improvements/

[jack]

Thanks Jeremy, I found that link last year. Unfortunately, it mentions nothing about insurance, but it isn't clear whether that's because consumers don't need to go through the supplier's insurance, or the CAB just hasn't dealt with this issue in the link.

 

I'll try calling them later this afternoon (just tried now and it sounds like there's a long wait).

[jack]

Aaand we're back in the room.

Citizens Advice weren't much help on the question of whether I could refuse to deal with the insurer direct. I tried contacting some law firms that specialise in this sort of thing but clearly my case is too small because I either didn't hear back or was told they couldn't help me.

 

I tried contacting the roofing company again, and they said they couldn't talk to me because it was with the insurer.

 

In the end, I went back to the insurer with the emails showing that their client had repeatedly admitted fault and liability for the damage in writing. I said that in view of the response to my initial email (in which either the insurer or the roofer lied), I was withdrawing my initial offer of accepting restitution just for the cost of replacing insulation and plasterboard, and expanding my claim to cover other direct costs, such as that for removing the insulation, the loss of amenity for the two rooms while they dried out, the costs of cleaning the rooms, and for getting a surveyor in to check that no other hidden damage had occurred.

 

I also said that I'd be seeking a partial refund of the installation costs I'd paid given that the leaks had happened at least twice after installation and that the repairs were clearly inadequate.

 

At the end, I asked for their confirmation of any items in my list that weren't covered by their client's policy (I'm assuming that the partial refund isn't covered, since it isn't an issue of public liability).

 

Their response was only a few days this time. Apparently, to "avoid protracted correspondence", they will offer me an amount equal to the lowest quote plus...

 

[drumroll]

 

Nothing.

 

Yup, all of that extra stuff is apparently worth nothing. Unsurprisingly, they didn't answer my question asking about what factors in the list I gave are covered by their client's policy.

 

Of course their first offer isn't acceptable, but what do I go back with? I see two possible approaches:

 

1. Put together costs for each of the things in the list, and say that this is what I'll be suing their client for as a next step if they don't seriously engage with me.

 

2. Demand that they actually answer the questions asked, and say that unless a proper answer is received within 7 days, I'll be initiating a formal complaint with Aviva and the Financial Ombudsman.

 

I suppose I could combine both 1 and 2, but my preference is to keep my responses as brief as possible at this point. 

 

Thoughts?

 

Thanks

[Jeremy Harris]

Is the value of the claim within the limit for the Small Claims Track for a County Court action?  If so, then I think I'd be inclined to just do this, and stop faffing around with people who are intent on fobbing you off.  You can do it online, and there is a small registration fee, depending on the value of the claim, but my experience of using it was that it was a pretty straightforward process.  The downside (apart from the fee) is that you have to prepare an evidence file to support your claim.  The upside is that companies will often just settle rather than go to the expense of getting legal advice.

 

The worst case is that you lose your claim in the judgement, which frankly I very much doubt will happen.  The second worst case would be that the agreed settlement would be what they have already offered.

 

The link to the online process is: https://www.gov.uk/make-money-claim

[Stones]

I think you're moving to small claims, but need / want to show that you have done everything possible to try and resolve the issue through discussion first.  I'd be inclined to go back to them rejecting their offer, outlining the full amount of your claim - would be really handy if it was the small claim limit.  If they fail to respond / raise their offer, final letter saying if they do not settle within the next 14 days, you'll proceed with court action via small claims.

[Dreadnaught]

1 hour ago, jack said:

I tried contacting some law firms that specialise in this sort of thing

 

Might this be the natural territory of a local family solicitor, not a specialist? Might a one-hour free consultation with such be a useful double check of your plans for how to proceed?

Edited September 9, 2018 by Dreadnaught