Help!!!

As outlined above, I got my own engineers report which seemed to clearly rebut the engineers report from Brit. Brit said that they would need to see the whole report to be able to reconsider the claim, so I shared it.

They responded "Setting aside the pre existing condition of the wall for a moment, the HAJ report intimates that the roadside flooding has been ongoing for quite a while, this in itself would seem to be sufficient to demonstrate that the
wall did not fail as a consequence of a specific incident on a specific day but rather more due to gradual deterioration over a period of time."

I responded

"As I understand it, the claim was initially declined on the basis of being in a poor state of repair prior to the flooding and its collapse. Your correspondance would seem to be very clear on this.

However, since you now appear to want to 'move the goalposts', I will try to clarify the situation. You are correct that there was some accumulation of water on the highway over a period of time (I'm travelling and don't have exact records to hand, but recall that I first reported to NCC Highways in June 2008). This road splash was however limited to smaller puddles. The road flooded at the end of August/beginning of September during very heavy rainfall and covered almost half of the highway. This was the first time this has occurred and this was what prompted me to contact NCC and get their engineer onsite. This 'flood' lasted a few days and is documented in the photos I took and provided to your engineer and your loss adjuster. There is no suggestion that this flooding occurred over more than a few days and I could provide witnesses from the village and Parish Council to this effect. Therefore, I feel strongly that the 'flood' was a specific event which lasted a few days (naturally caused events have a habit of ignoring a 24 hour time limit) and it is this flood which caused the collapse of the wall. Indeed, the time lapse between the flood, NCC visit and the first collapse is (from memory) 48 - 72 hours.

Brit are standing by their decision to reject the claim - In fact, they responded within a couple of hours one night that they would not be changing their mind (without their engineer even seeing my report)! I'm really disappointed as I felt that Brit would realise that their claims were without standing. Instead, they now seem to be moving the goalposts from 'poor maintenance' to 'gradually operating cause'.

Any advice is most welcome, since they are now basically telling me to go to FOS

I think all you can do is submit all the information with a covering letter to the FOS, with a file of papers in chronological order and see what they decide.

As part of the process the FOS would have sent Brit a copy of the latest report anyway and I suspect Brit would have made the argument that the cause was gradually operating.

I think the change in reasoning for declining the claim and the delaying tactics will count against Brit.

The crucial information is about the road conditions with water being sprayed continuously onto the wall and possibly flooding against it. This is where any witness statements, plus additional information from the surveyor and local authority can help. How long had the flooding been a problem? If it had only been an issue for (say) a few months and the wall was in a good repair previously, I think it would be difficult to argue that the cause was gradual. The wall had been standing for many years, without any issues before, so it was only a change to the road drainage that caused the problem. You can show that you took reasonable precautions to try to deal with the drainage problems.

I have searched for any previous information on the FOS and ABI sites about gradually operating causes affecting flood claims. The only details I can find are about underground pipes which I don't think the FOS would use to decide on this issue.

I am still of the opinion that the FOS will look at the original loss adjusters report as being the key document. If the original loss adjuster was clear that the claim was valid, why are Brit still messing around a year later.

I would not mess around with Brit any more as they obviously did not want to pay the claim from the outset. The FOS are bound to comment on the behaviour of Brit.

Huckster

Thanks for the response.

Do you know if any guidelines exist on what constitutes gradual vs. flooding? ie. Is there anything which says that 1 week = flood and 3 months = gradual?

I can demonstrate that the major flood (ie. over the kerb depth) only occurred for apx 2 days before the wall collapsed.

Also - it was impossible for me to effect repairs or maintenance due to the road splash....so until the drain was unblocked, it was impossible for me to prevent....is this relevant?

I've been doing a lot of research myself, but can't find any guidelines on what constitues gradually operating cause.

pford75:

Thanks for the response.

Do you know if any guidelines exist on what constitutes gradual vs. flooding? ie. Is there anything which says that 1 week = flood and 3 months = gradual?

Also - it was impossible for me to effect repairs or maintenance due to the road splash....so until the drain was unblocked, it was impossible for me to prevent....is this relevant?

I've been doing a lot of research myself, but can't find any guidelines on what constitues gradually operating cause.

I could not find any information on what constitutes gradual vs. flooding. Normally gradual is over a reasonable period. It would certainly be more than 2 days and more than a week. I would say in regard to the wall in question, you would have to be talking about more than a month of repeated flooding. The only relevant issue I can think of is flooding due to a rise in the water table. There was a court decision that affected the way in which the FOS rules on such matters. I would argue that a rising water table damaging a property could be viewed as a gradually operating cause, but would the FOS take this view. If you have reasonable evidence that the flood damage occured over 2 days, then I am not sure Brit could argue against this.

The following may be helpful if you have not seen it already. http://www.financial-ombudsman.org.uk/publications/ombudsman-news/10/oct-houshold-disasters.htm

The fact that the road drainage problem was something you had no control over is relevant as it caused the problem. If it was your drain, the Insurers could make the case that you did not take reasonable precaution to prevent the loss. But as it was a drain owned by the highway authority and blocked by developers, this was beyond your control and therefore the only reasonable action you could take was to contact the highway authority.

Hope this helps

Huckster

This link on causation and the "but for" test may be of interest to describe how the FOS determine the outcome.

http://www.financial-ombudsman.org.uk/publications/ombudsman-news/28/28-poormaintenance.htm

CMK

Yes that is a good shout!!!!!!

Had the drain not been blocked due to the development, there would have been no flood and therefore the wall would not have collapsed. A reasonable argument to make in the circumstances.

Huckster

I agree that the evidence the OP has in his possession and the, "common sense" approach that will be applied by the FOS will find this case in favour of the OP. !

I am no expert on insurance matters but my common sense is near to expert level.... I believe these insurers are simply trying to wriggle out of their quite apparent & clear liability.

Good luck - pford. !

Precisely what I said somewhere in the above posts RE who/what is at fault and proximate causes etc.

I still stand by this.

The point here is that pford has exhausted Brit's complaint procedures and can do no more with them. This is now a matter for the Ombudsman who will be more than willing to look at the complaint given that Brit have given their final word and the Insured is still unhappy. Brit are probably hoping the Insured doesn't go to FOS. At the end of the day it's a risk worth taking for the sake of £500 it will cost for the report anyway; it's nothing in comparison to the payout.

In answer to pford's question RE 'gradual' you are quite correct in it not being well documented. Point 9 - http://www.financial-ombudsman.org.uk/publications/technical_notes/pitch-fibre-pipes.html#9 although 'gradual deterioration' doesn't necessarily mean over 'years'.

From an underwriting point of view 'gradual' would mean a loss not directly resulting from a sudden identifiable, unintended and unexpected incident occurring in it's entirety at a specific time and place during the period of insurance. (similar to gradual pollution under a commercial policy). Emphasis on 'at a specific time and place during the period of insurance'.

Interestingly policy wordings are changing fast to amend 'gradually operating clause' to 'other damage that that happens gradually over a period of time'. Obviously this doesn't help matters anyway considering we are looking for the answer to 'a period of time'. In the eyes of the FOS they will be looking at professional opinion to determine what's the reasonable period of time.

You should emphasise the initial report and then the reports that followed. The professional opinion you got was the wall would wear away quickly due to the material it's made from. This strikes me as anything BUT gradual in that case! They've pretty much wrapped it up themselves! It can't be gradual because it would be rapid given the levels of water. 'Gradual' and 'rapid' are words that can't be used together as they are conflicting and contradicting and therefore not a reasonable period of time for the 'gradual' stance.

Also, as I commented on before, there is the issue of the blocked drain and access. Without adequate drainage, water builds up and will cause damage. Then you have the fact that the insurer cannot use the material of the wall an excuse - what was built years ago may not be built in the same way now etc. and so forth.

The FOS WILL uphold this claim PROVIDED THAT IT IS PRESENTED PROPERLY! Pford, without sounding crude, you seem relatively wealthy. It would be a good idea to pay services to get this professionally presented, in my opinion. Take the comments from this thread with you too!

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Coyote

Thankyou all for your responses....it has certainly provided useful info and it helps to have someone tell you that you're not crazy....insurers can wear you down after a while.

Brit were initially pursuing a rejection on the 'but for' basis (ie. It was not the flood which caused collapse, but poor maintenance). Since this is now strongly disputed by my engineer, they are switching their argument to one of gradually operating cause (ie. "The wall may have been maintained, but we argue that the damage was caused not by flood, but by continuous road splash over an extended period")

What I feel I need to separate in my argument is that 1. There may have been road splash over a period of time, but this did not cause the wall to collapse and I was in no position to undertake preventative action 2. The major flooding occurred over a period of 24-48 hrs and the degradation of the wall was incredibly rapid at this point.

Wealth is a relative term ;-) But seriously, I am prepared to pay for professional services (as I have done with my engineer), but on the presentation of the FOS case, I haven't yet found anyone who I am convinced will present a better picture than myself. That may sound massively arrogant, but I've lived and breathed this now for a year and am used to dealing with reports etc in my career. Thoughts/comments?

I agree that as you have 'lived and breathed' this , you may be best placed to make the argument. Although I can see the argument from Coyote that professional services may format the evidence in a way which could possible assist the FOS, come to a decision. It will cost you a fair bit and they may only use the information, you have already obtained.

I think the argument of Brit that road splash may have been a factor needs to be addressed. Does the engineer cover the issue in his report? If not is it possible to ask for any additional comments to be provided. The FOS could look at the issue of the lime mortar having been degraded, before the actual flood event. This could be a crucial point to cover off.

Huckster

Officially referred to the FOS today.

Watch this space

pford75:

Officially referred to the FOS today.

This is to prepare you, not scare you.

I've used the FOS twice in over 20 years. On the first occasion, a building society having used an unregistered "lawyer" to argue it's position pre-referral, used a barrister to represent it's position to the FOS. Personally I though that was in breach of the spirit of the scheme, but the FOS accepted the submission.

On the second occasion, the FOS adjudicator found in my favour but the building society exercised it's right to object the adjudication, forcing an ombudsman not to uphold my complaint. I was not provided with a copy of the objection letter. I later found through FOI that it contained factual inaccuracy and unsubstantiated personal criticism. It was clearly written in the full knowledge that I would not see it before the issue had been finally decided and therefore irrecovable. The whole process took almost a year, by which time the original problem had gone away. I was content however that the building society had been subjected to the then £400 case fee.

If I have a warning it's don't trust the process at face value. You won't have the last word and you won't see the last argument unless you manage the FOI process.

The FOS is a good system where the case fee is significant compared with the issue, but in your case you need to keep the possibility of legal action in mind.

FOS confirmed receipt of my case (only took 2 weeks to confirm...) and say that "due to heavy caseload...etc. etc." it will take some considerable time, but they will write back within 2 months to update me on progress.

Just as a quick update....received a report from Norfolk County Council's public liability insurance department. Their surveyor came and saw the wall/road during the flooding and before it's collapse. (which is helpful as he was the only one to observe the flooding first hand).

He states that:-

1. That the road flooding was the cause of the damage to the wall

2. That this damage was ‘rapid deterioration’ and not some gradual event over a long period

3. That a blocked drain was the cause of the road flooding

4. That highways have taken all reasonable steps (in their opinion) to investigate and alleviate the problem

I have forwarded this information to the FOS casework team - with the county council, Brit's loss adjuster and my own surveyor all agreeing that this was a flood event and that this caused the collapse of the wall, I would hope for a positive conclusion.

That new vital & significant evidence is of major importance to your case, in my opinion you would have won this case as matters already stood.

This crucial new evidence coming forward from an impartial expert witness at the time of the event and the subsequent damage, can only serve to further seriously strengthen your case.......get the champagne placed on chill for a successful outcome.!

I would expect when they agree to payout for this work that conditions will be also put in place to reduce any chances of a further occurrence of this event to an absolute minimum, i.e. they or whoever is responsible, paying for new improved storm drains, culverts and back up drainage works to cater for possible future flash flood or partial blockages.