What to sign away when seeking restitution for negligence

[newhome]

I don't know the full back story here but I'm surprised that you are having to deal with the insurer. Surely your claim is against the roofing company and they have their insurance policy to pay out on negligence claims against them? 

 

I have had an ongoing issue with my company pension where the administrator 'forgot' (their word) to do a switch of funds I requested and I lost circa 2k by the time they made the switch. It took over a year of me fighting for this compensation during which time they made several other errors that compounded the issue and eventually they compensated me. I asked for be compensated for the considerable amount of time I had to spend getting them to put it right and they offered me a derisory £200 on a take it or leave it basis. I wasn't happy so told them I was going to the Financial Ombudsman. Anyway, the reason I mention this is that I did try to go straight to the Financial Ombudsman before the pension company had responded to my complaint and I spent time on their website filling in their complaint form and it pretty much said go away if you haven't raised a formal complaint with the company concerned. I am about to progress to the Financial Ombudsman. 

 

I think the problem you will have is that you are not Aviva's customer so I'm not clear whether you can ask the Financial Ombudsman to intervene. You are the customer of the roofing company not Aviva and you have no direct relationship with Aviva. My advice would be to ring the Financial Ombudsman and ask if in this scenario you can bring a complaint against Aviva. There is this link from Citizen's Advice about a third party case. It's not the same scenario but it has some advice that I imagine is pretty standard surely. 

 

Third Party Insurer

 

I don't suppose you have legal cover with your home insurance policy that might help with this? 

 

I would a. raise a formal complaint with Aviva and ask them to confirm that they are treating it as such (if indeed you can given that you are not the customer). I think you need to give them 8 weeks to respond generally but they should have their complaints procedure on their website. I would also state very clearly the compensation that you are looking to receive including the amount of compensation you are seeking to add for the additional items you list. Without putting that in writing you leave yourself open to getting offered nothing (in this case) or very little. Give them something tangible to work from, and state that this is the amount you intend to progress through the small claims process (if under the limit - you can still progress through the county court if it's over the limit but it's more complex / costly). If you are not satisfied after raising a formal complaint ask Aviva for a letter of deadlock or final response so that you have this for the financial ombudsman but do check that you are able to raise a complaint with the ombudsman via a quick phone call. 

 

Put the roofing company on notice that you will be bringing a claim against them in court due to their insurer's offer being unacceptable to you. As the company you have the relationship with you may well need to being the case against the roofing company rather than Aviva anyway. The roofing company needs to understand their obligations to you and stop being so passive. 

 

When we had the scaffolding incident here I had insurance and the complainant had his own no win no fee personal injury specialist. Apart from making statements etc the case was all dealt with between the lawyers but when there was a time critical event (as in over x years since the case started according to my insurance company and court papers needed to be served to keep it 'alive') we had papers served on us as the party being claimed against not against the insurance company. 

[HerbJ]

3 hours ago, Stones said:

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.

 

I agree with this. There is little point in trying to negotiate with the Insurance Company - as you have already found, as they are/will be intent on settling at the least cost within the defined terms of their policy held by the roofing company and this policy may not cover all the damages that you are now claiming.  Also, you have no leverage with the Insurance Company, as you cannot drag them onto court, as you have no contract with them!  

 

I also don't believe that you have a case for complaint with the Insurance Company - you're not their client and have no insurance contract with them.  They're simply defending a claim against their client - the roofing contractor - however unreasonably they are acting and their policy allows them to do this.  If you take the roofing contractor to law, then it may well defended by lawyers appointed by the insurance company., again because that is what the policy provides

 

It's a strange situation - did the insurance company send a loss adjuster to your house?  That's what I would have expected? I would have also expected the negotiation  to be with the loss adjuster.

 

 

[jack]

Warning and apology: long post ahead! I'm partly doing this as a way of organising my thoughts.

 

23 hours ago, JSHarris said:

Is the value of the claim within the limit for the Small Claims Track for a County Court action? 

 

Yes, quite a lot less at the moment. Depends on what else I claim for!

 

23 hours ago, Stones said:

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.

 

This is what I'm thinking. One problem, though, is that some of what I now plan to pursue (partial refund of installation cost) is almost certainly not covered by this insurance. I'd rather not fight on two fronts, so my current thinking is to stop dealing with the insurer and go back to the roofer directly. I suspect they've been told by their insurer not to communicate with me, but that only applies to the extent that I'm willing to keep going down this route with the insurer directly.

 

22 hours ago, Dreadnaught said:

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?

 

Possibly. A solicitor acquaintance said that insurance law is a bit tricky, and didn't feel they could give advice they'd rely upon. I'd assumed that a local firm of solicitors would be the same unless they happened to have someone who dealt with insurance law. Always a possibility of course.

 

21 hours ago, newhome said:

I don't know the full back story here but I'm surprised that you are having to deal with the insurer. Surely your claim is against the roofing company and they have their insurance policy to pay out on negligence claims against them? 

 

Exactly my problem with all this (disclosure: I have a law degree, so am mindful of privity issues), and an issue I think I discussed earlier in this thread or the other thread when it first happened. I've assumed that the insurer is acting as an agent of the insured for this portion of the negotiation, although they haven't formally stated that they are taking this legal role.

 

The rest of your post is helpful, thanks. I hadn't seen that link to third party insurance claims - very useful.

 

20 hours ago, HerbJ said:

It's a strange situation - did the insurance company send a loss adjuster to your house?  That's what I would have expected? I would have also expected the negotiation  to be with the loss adjuster.

 

No, the sole interaction I've had with the insurance company is as set out above. In summary: 

• I receive a single paragraph email from the insurer saying that they hear I allege their client has caused damage, asking for evidence to support my claim.
• I send back a detailed explanation of what happened, including timeline and photos. Didn't think to include client's emails admitting fault/liability, as it didn't occur to me that fault/liability was at issue.
• Three months and several emails from me later, I get back an email that says, approximately: You haven't provided proof or an expert report. Our client says they don't know what caused the leaks and they could have been caused by many things outside their actions.
• I write back with quotes from the roofer's emails to me, confirming that the leaks are due to items they supplied and fitted. I tell them that I've withdrawn my previous offer and am now expanding it to include other damages directly arising from their client's actions. I list the items against which I now intend to claim and ask them to confirm which items from the list their client's policy covers.
• They reply with the following (this is the entire email):

                     "In an effort to resolve the claim without need for further protracted correspondence. I am willing

                     to make an offer of £2730 in full and final settlement. We are not responsible for the first £250 of

                     this claim and our Insured will be asked to pay you this separately.

 

                     If the offer is accepted, please provide your account holder name, sort code and account number?"

 

That sum is the lowest quote we had for replacing the insulation, boarding, skimming and painting, which I set out in my original email. It allows nothing for any of the other items I listed, and (as with the first email I sent them), they more or less ignored my questions.

 

Re: claiming, I'm interested in potentially pursuing the following costs:

 

Removal and disposal of insulation 

This took me over two days on a stepladder, cutting open the airtightness membrane  in each 400 x 400 section (battens + counter-battens) and pulling sodden cellulose insulation into rubbish bags. The cheapest labourer around here is around £100 a day, so I thought to claim £200 for my time here (not counting costs of bags, or trips to the tip).

 

Cleaning

Cellulose insulation makes a hell of a mess. Even with dust sheets and our best efforts, it got everywhere. Very conservatively, we spent 2 hours cleaning after all the insulation was taken out, and then another 2 hours after the membrane was repaired and the insulation re-pumped.

 

Cleaners are at least £20 an hour around here, so 4 hours gives £80. 

 

Loss of amenity

We weren't able to use the bedroom or the bathroom while this was happening. The leaks happened in early January, and we were advised to let the easi-joists dry out properly, ideally over summer (the wood may already have been wet for months before the leaks became apparent). In the end we had well over a year without these rooms, but I was planning to call it six months.

 

I don't know how to value the loss of amenity. I could base it on renting a room in a shared house like mine in my area, but you get a share of the rest of the house for that money.

 

The alternative is to go by floor area. The affected bathroom and bedroom are just over 30m² in total, versus 289m² for the whole house. Call it 10%. 10% of the monthly rent around here is roughly half the amount it would cost to rent a room in a shared house. 

 

Rough numbers would be about £2000 for the six months. Reasonable?

 

Additional heating

Having no insulation, and less airtightness, while the roof was drying out increased the cost of heating. We have no heating upstairs, so during the three coldest months, we left a column heater on low in the bedroom, just to make sure that the timbers and internal walls didn't get too cold (thereby avoiding condensation).

 

Call it 24 hours a day at (very conservatively) 0.5kW average = 12 kWh @ £0.14/kWh, for 90 days = £151.20.

 

The bathroom was left open to the rest of the house, as the uninsulated area wasn't big enough to chill the rest of the house. I therefore don't propose to add anything for this, although undoubtedly the house heating system would have been working a bit harder to make up the difference.

 

Expert assessment

This is a tricky one. I suspect that some water is likely to have made its way into the cellulose where the roof meets the wall. I have no idea how much though. Any water will almost certainly have dried out over the first summer after the leaks, and it's pretty unlikely to cause any long term damage.

 

However, I don't know this for sure. As such, I think there's something to be claimed here for either getting in an expert to do a proper review with inspection holes etc, with restitution if needed. This could be expensive: if there's any damage, we're talking major structural matters, including replacing insulation and studwork in an external (=supporting) wall with all that entails. I assume we're talking several thousand quid for this job given how fiddly it's likely to be.

 

An alternative would be to raise this as a possibility, and then offer as an alternative a risk premium. I would agree not to pursue any future claim in relation to structural damage caused by the leaks, for which they would pay some fraction of the estimated cost of inspection and rectification. Say it would cost £10,000 to inspect and rectify - I would accept, say, £1000 to absolve them of the future risk.

 

My time

I've spent countless hours on this to date - probably at least a couple of days, including time trying to locate the leaks and interacting with the roofer and the insurer. I'm not sure how reasonable it is to claim for this, but I was thinking that any tradesperson I had in to do the investigating would be at least £200 a day around here. Call it half a day = £100. All the other stuff could be an hourly rate - nominally twice minimum wage? Call it (very conservatively) 8 hrs @£15 an hour = £120.

 

Total: £220

 

Partial refund of installation costs

These aren't the first leaks we had in these areas.

 

Not long after the membrane was installed, we had some serious rain that resulted in several leaks (including exactly where these two leaks happened after we moved in). The roofers inspected and concluded that the problem was likely to be water tracking back through the structure of the house, since the coping over the parapet hadn't yet been installed. I thought that extremely unlikely based on the wall structure, but it was my opinion against theirs, so I didn't feel I could push too hard.

 

They put the coping on, and then we had more leaks in the same places when it rained. They inspected again and concluded that it was likely to be water tracking back along the underside of the outlets going through the parapet wall. They installed a drip edge underneath the scupper. Again I wasn't convinced that the volume of water could possibly be tracking all the way back across the twin stud wall (no insulation as yet). They also spent some time adding additional patches around the outlets on the inside of the parapet wall, because I was convinced this was where the leaks were happening.

 

Once they'd finished, I inspected the work and raised a number of issues to do with various edges not being sealed properly. I also again raised the fact that I didn't think the membrane was properly adhered to the flat bits of the scupper inside the parapet wall. They came and re-did the joins I identified, but disagreed with me on the scuppers. In the end, they had a rep out from the membrane supplier (Resitrix), who inspected the work and confirmed in writing that they believed the roofing had been installed to a high standard.

 

We moved in a couple of months later, and the leaks happened within two weeks. 

 

My personal theory is that the unadhered bits around the scuppers allowed a small amount of water to work its way into the joins. Every time we had a cold snap, the water would freeze and open up the gap(s) a little more. Over several freeze/thaw cycles, the water eventually opened up a path into other unadhered portions, and now had a clear track into the roof.

You have to give a supplier the opportunity to correct their own errors. Based on the history of these leaks, I believe they had ample opportunities. I therefore think it's reasonable to now demand a partial refund on what we paid them for the installation. Would 10% of their labour cost seem reasonable? Definitely open to suggestions as to what might be a reasonable request here.

 

 

More generally, I'm not trying to punish anyone, but I'm increasingly frustrated and annoyed by the reactions of both the roofing company and the insurer. They've put us through an awful lot of stress and sleepless nights, and made us spend a lot of time dealing with the aftermath of these leaks that we'd rather have spent finishing off the rest of the house. I offered the roofing company a cheap, simple, solution, but they complicated the situation massively by getting their insurer involved, and either they or their insurer has since lied about the roofer's culpability.

 

I'm currently thinking that I add up all the costs I would claim if it went to court, and offer to take some proportion (70-80%, say) of this if they pay up now. 

 

However, I don't want to take the mickey, so please tell me if I'm going too far with any of my costs above. 

 

I'm also mindful that the larger the compensation I demand, the more likely they and/or their insurer are likely to want to fight it, so I very much want to stick to claiming only for what a court is likely to award.

 

Thanks as always.

[joe90]

Gosh, my heart goes out to you over this awful problem, my thoughts are sue the bastards, (roofer) for everything, it’s up to them to involve their insurers. You have been more than reasonable so far and can prove it but they are taking the mickey Despite the financial cost there is the worry and stress factor . Hit them.

[HerbJ]

1 hour ago, jack said:

However, I don't want to take the mickey, so please tell me if I'm going too far with any of my costs above. 

 

No you're not going too far. The first rule of claims management is to build up a reasonable  estimate of all the costs related to the damage, including any cost of mitigating the loss, and then negotiate from there....

Personally, I wouldn't bother with a solicitor (they're generally not qualified in this sort of thing, will only gather information and would resort to a barrister anyway for anything difficult). I would consider instructing a barrister, who is a specialist in construction claims, to assist with assessing the case and drafting a final letter before legal action .  Barristers are  cheaper than solicitors, more business like, direct and efficient. 

Use a chamber outside of London. I used a chamber in Exeter for a problem I (representing the Management Company as a owner/director) had with neighbour, when I had a flat in Torquay. The guy I found is now a judge....  See Magdalen Chambers = https://www.magdalenchambers.co.uk/ I sent them a letter with a synopsis of my issues and they gave me what was effectively a lump sum quotation.  I went from there. I did most of the work to brief the barrister, which you can also do very effectively, and the barrister gave me an opinion and wrote the letter. He then helped with mediation, and then later in court. A barrister cannot start the court proceedings, this has to be a solicitor.

Edited September 10, 2018 by HerbJ

[HerbJ]

One thing I forgot to include in my post above.

 

What does your contract with the roofing contractor provide in relation to loss and damage caused  by or as the result  by their  work?

 

Did they exclude consequential losses in wording such as.     '"...... for any consequential loss, damage or inconvenience resulting there from. negligence"?   

"

[Jeremy Harris]

@HerbJ is absolutely spot on.  First off, your claim is very definitely against the roofer - if he chooses to use his insurer for a part of the claim, that's up to him, but I suspect some of your claim may not be covered by his insurer anyway, that he knows this and he is deliberately trying to get you to deal with his insurer in order to limit his own liability.

 

I've worked with several insurance companies over the years, and generally they are pretty canny.  They already know what they are liable for and what they aren't, under the terms of his cover, and if he has legal expenses cover as a part of his policy (and I expect he may) then they will want to limit any legal expenses, too.  As such, my guess is that the insurer will go back to the roofer and say that part of the claim is covered by his insurance policy and part of it isn't, and they may well advise him that they won't provide legal expenses to fight his part of the claim if it doesn't look like there is a reasonable chance of success (in my experience, insurers will pull out of legal action and settle if they think there is about a 30% to 40% chance that they will lose, not something as high as 50/50). 

 

Consequential loss may not need to be implicit in a contract for something that is readily understood in terms of fitness for purpose, like a roof.  No one expects a newly installed roof to leak, so therefore a claim for consequential damage will be almost certainly be allowed, no matter what's in the contract.  The only possible argument could be whether or not your own insurance on the house might come into play for some of the consequential damage, but I doubt it, as that damage is a consequence of a roof that was not fit for purpose in the first place.

[jack]

6 minutes ago, JSHarris said:

@HerbJ is absolutely spot on.  First off, your claim is very definitely against the roofer - if he chooses to use his insurer for a part of the claim, that's up to him, but I suspect some of your claim may not be covered by his insurer anyway, that he knows this and he is deliberately trying to get you to deal with his insurer in order to limit his own liability.

 

Yes, the claim is legally against the roofer for sure, although the insurer could get their legal team involved of course. I'm sure that at least some of the above won't be covered, as it's just a general public liability policy. I can't imagine there's any provision for a partial refund of the installation payment, at the least. 

I did ask what the policy covered (not unreasonable, since I'd been asked to deal with them rather than the insured), but they ignored me.

 

8 minutes ago, JSHarris said:

... and if he has legal expenses cover as a part of his policy (and I expect he may) then they will want to limit any legal expenses, too.  As such, my guess is that the insurer will go back to the roofer and say that part of the claim is covered by his insurance policy and part of it isn't, and they may well advise him that they won't provide legal expenses to fight his part of the claim if it doesn't look like there is a reasonable chance of success (in my experience, insurers will pull out of legal action and settle if they think there is about a 30% to 40% chance that they will lose, not something as high as 50/50). 

 

Interesting possibility. 

 

I think at the moment the best option is just play it with a straight bat, and not think too hard about these known unknowns. 

 

I need to take a break from this for a few days to get some work and some balconies done, but will update once I'm ready to take the next step.

 

Thanks all.

[jack]

2 hours ago, HerbJ said:

What does your contract with the roofing contractor provide in relation to loss and damage caused  by or as the result  by their  work?

 

Did they exclude consequential losses in wording such as.     '"...... for any consequential loss, damage or inconvenience resulting there from. negligence"?   

 

I need to look up what form of contract, if any, we signed. My wife largely dealt with this particular trade, so I'm not sure. 

[joe90]

23 minutes ago, jack said:

I think at the moment the best option is just play it with a straight bat, and not think too hard about these known unknowns. 

'

?