Well, some good news at last.

I have been pursuing the developer who was responsible for blocking the drains (and therefore causing the flood). They have finally agreed to settle out of court (although the figure they are offerring is calculated on the basis of damages for interfering with my drainage easements and not for damage to the wall). If the worst happens, then I at least will have some funds to be able to reconstruct the wall). Does rather demonstrate though that insurers could quite easily have pursued the developers for the recovery of their costs. Can't see why they didn't do this.

This is a bit shocking.

The current adjudicator appears to be favouring their personal opinion and ingoring the weight of evidence you have provided.

I have read that many people have turned to the courts after the FOS have rejected claims and the courts have come to different conclusions.

Latest update.

Had an email from the FOS adjudicator explaining that "Having considered the evidence on file, it is my view that if the wall had been well maintained...it may not have collapsed due to the splashing of water...Therefore, I felt that the damage was excluded under the terms and conditions...."

I'm totally shocked!!!

1. The matter has previously been 'adjudicated' and my complaint was upheld. There was no new evidence from Brit and yet for some reason it was 'readjudicated' and a different view was reached

2. I have written to FOS asking why they have sided with 1 surveyors report from Brit vs. multiple independant expert opinions from others (Brit's loss adjuster, County Council surveyor, my own surveyor)

I'm absolutely stunned :-(

You may have read this already on the FOS site

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

It is all about opinions. People read things differently or may naturally be inclined to think certain things when they come to conclusions.

All buildings suffer from wear & tear, it is whether an event of damage was caused by this or whether there was an 'insured risk' in operation that would have caused the damage anyway. Did the condition of the wall have any bearing on whether it collapsed or not, when the flood water rose against it ? You need to really hammer home, that you have pictiures and expert opinion to state there was not any significant wear & tear at the time, which was the overbearing factor. Also surely there is no evidence provided by the Insurers to substantiate wear & tear. If there is any mention of W&T in any report, you must be able to clarify this or counter.

pford75:

However, it seems a little strange to have 1 adjudicator reach the reverse conclusion without (as far as I am aware) having any new information from Brit or myself.

Indeed. Though I think the strange thing is another "adjudicator" being involved after the omdudsman referral. Neither am I "surprised" at a reversal. You say "as far as I am aware" the reversal ocurred without "new information from Brit". What makes you think that?

I had an adjudication reversed by an ombudsman. I later found out via SAR that following the adjudication the financial organisation had (as invited) made a further submission. I was never of made aware of the content and when I eventually had sight of it, I saw it contained errors of fact and personal criticism. In my case I was already content that the organisation had been scr*wed for a case fee. Obviously in your case it's different.

I would say, see the process out, then use SAR to smoke out what has been submitted pending consideration of legal action. Also although you can't use the FOS internal complaints procedure to alter a decision, I think it may be open to pursue a breach of process complaint, so research that avenue.

Update on my complaint to the FOS

My case was reviewed by an adjudicator last year and in November they wrote to Brit advising that my complaint should be upheld and that Brit should pay my claim, plus interest.

Brit refused to accept the adjudication and the matter was due for referral to an Ombudsman

Last week I received a letter from another adjudicator (seems the initial one has left FOS), advising that they didn't feel able to recommend that my complaint be upheld!

This adjudicator agreed that it was not a gradually operating cause, but felt that the wall must have sufferred 'wear and tear' before it's collapse. I've been invited to send more info (which I am doing). I am disputing this on the basis of my expert reports (which claim the wall had sufferred no wear and tear up until 3 days before it's collapse..based on photographic evidence).

However, it seems a little strange to have 1 adjudicator reach the reverse conclusion without (as far as I am aware) having any new information from Brit or myself.

Any advice welcomed - Is there any 'wear and tear' guidance I ought to be reading?

Let matters take there course I think.

I have heard the FOS is snowed under with cases waiting for the ombudsman to review. I think Insurers due to the current economic situation, have perhaps been finding excuses to decline or reduce claims and this must also apply to other types of complaints they are handling.

Had a call from someone at the FOS who was "reviewing the file before passing to an ombudsman". They wanted to clarify if I am currently pursuing any legal action against any party related to the flooding and the collapse of the wall. This is because I was at one stage (in the face of Brit's refusal), pursuing an action against a developer for blocking the drain which I contended caused the flooding. I suspended this action in order to be able to refer my case to the FOS (since they will not take any case which is due to be considered by the courts).

I asked how much longer before my case would be heard, but they were non-committal. If my complaint is upheld, I would like to reconstruct this year (and when building with lime this needs to be done before September). With the need for Listed Building Consent, planning etc. and the scarcity of flint contractors, I can see that this will be at risk if this doesn't reach a conclusion soon. Pushing it out by another year would impact the cost of reconstruction.

Do I have any leverage with the FOS or do I just let things take their course?

Yes that appears to cover the points that you need to make, but I would include dates when you mention surveys being conducted and point to the documents that have been provided to the FOS.

I would also include a basic time line, so the ombudsman can see immediately the time Brit have taken to try to avoid the claim.

Have you also included a full assessment of the costs you have incurred in pursuing this matter. I presume these were included in your papers to the FOS case handlers.

I think the easier you make this for the Ombudsman by referring to key documents/information the better. I suspect that the Ombudsman will only take a couple of hours to review, so will need to be pointed to the information you want him/her to read.

Hope this makes sense.

Huckster

OK...here is my draft for the notes I am considering submitting to the ombudsman...comments welcome

“Brit had a responsibility to fully assess my claim under the terms of my policy. They appointed loss adjusters at the time of the claim to undertake this assessment on their behalf. Their own loss adjusters (working for Brit, not as an independent third party) concluded that the proximate cause of the damage was flood and there was no suggestion of gradually operating cause or poor maintenance in the loss adjusters report. I have obtained a copy of the entire file documentation from the loss adjusters under the Data Protection Act subject access request process.

Brit now claim that they disagreed with their own loss adjusters view. I find this difficult to understand, on the basis that no one from Brit had visited the site or surveyed the flooding etc. However, having reached a different conclusion, Brit should have at that stage commissioned a second opinion. However, they decided to simply refuse the claim (in direct opposition to their loss adjuster) with no evidence/survey to the contrary.

They did not commission the structural survey until a full 12 months after the claim. By this time, the wall had been dismantled (due to having been declared a dangerous structure by Breckland District Council), the flooding had been resolved and there was no basis for inspecting the original claim. Instead, Brit’s surveyor set out to ‘disprove’ the initial claim by seeking to collect evidence from other parts of the property. It should be noted that the buildings insured extend over an area of nearly 4 acres (ie. What relevance is the condition of another part of the buildings, 12 months later, to the claim for the damaged wall.)

I contend that:-

1. Brit should have accepted the opinion of their own loss adjuster

2. If they wished to reject this opinion, they should have immediately commissioned an expert opinion

3. The subsequent survey by Brit was not an inspection of the claim (since the wall had long since disappeared), but a thinly veiled attempt to find a basis for rejecting the claim.

4. Any survey 12 months after the claim is less relevant than opinion at the time of the claim (when the wall was standing and the flooding could be observed)

5. There are 2 independent opinions from the time of the claim (Brit’s loss adjuster and the Norfolk County Council senior surveyor) and both agree that flood (not poor maintenance or gradually operating cause) was the proximate cause

6. To date, there have been 4 assessments of the cause of the damage. Of these, 3 concluded that the cause was flood. Only 1 held an alternative view and this contains clear factual errors (as documented by Hale Allen Jones).

The constant delaying tactics and refusal to clearly set out in writing the reason for the rejection of the claim by Brit has resulted in the unacceptable delay in processing this claim and it would seem that Brit decided at the outset that they did not wish to pay this claim. This delay and Brit’s handling of the claim has resulted in costs (surveyors report, dismantling wall after collapse, 15 months storage of materials from wall due to it being listed) as well as considerable time and stress in pursuing this complaint.

I think it depends on the issue and which company a complaint involves, as to whether the decision is reached in a truly imparitial way.

The last time the FOS stats on General Insurance decisions were published, 43% of complaints against Brit were upheld. I thought at the time this appeared quite high, as I don't think this included much in the way of PPI miss-selling claims. Also many complaints passed to the FOS are not always realistic and are based on moralistic values, rather than precedents, law, custom and evidence. Some people make complaints without merit distorting the stats, which makes an upheld stat of 43% surprisingly high.This is the link to the FOS data.

http://www.ombudsman-complaints-data.org.uk/

I agree with the approach to summarise the evidence already submitted which backs up the original loss adjusters view. I would also comment about the behaviour of Brit who appear to have made up their mind not to settle the claim from the outset. And also possibly do a simple time line sheet, showing in date order what has happened over the last 18 months.

If Brit manage to wriggle out of this, which I doubt, then of course as Jalexa suggests a SAR should be made under DPA, in preparation for taking this matter through the civil courts if necessary.

Huckster

pford75:

How do I stand should Brit provide counsels opinion to the FOS? Would the FOS provide this to me?

If I recall the chronology correctly, the final submission is not provided for comment. I subsequently obtained it through a SAR. It was notable that it contained errors of fact and unsubstantiated personal criticism. It was clearly written in the process knowledge that the complainant would not see it before the final decision was taken and then the decison is irrecovable.

In my case my FOS "deliverable" had already be fulfilled - the issue was a small matter which had "gone away" in the 9 months the case took to be considered and a case fee had been levied on the organisation. Your case is completely different due to the sum at stake.

Subsequent to the decison I believe if you make a Subject Access Request you will get all the case correspondence which would be useful in informing a next step.

There has been recent financial press coverage of the FOS painting it in rather a poor light and making certain allegations about its partiality. To a large extent I concur but for the benefit of anybody here with a bank or insurance complaint, use the FOS anway, it costs the complainant nothing and the organisation a hefty case fee regardless of the outcome.

But it's not a court and I seriously doubt it works well for large sums and technically complex issues.

Thanks for all the feedback - it really has been helpful to know throughout this process that there are others who share my view.

Anyway, as I understand it, Brit could well provide additional information (including a QC's opinion) in their final submission. Although frankly their failure to respond to the enquiries from the case worker is typical of their approach throughout. They simply cannot see that having rejected their own loss adjusters advice, with no visit, no inspection and no expert opinion until 12 months after the event seems a little shoddy. (especially in the face of an independant report from the County Council's own highways surveyor supporting the claim).

Someone touched on this earlier in this thread. I don't wish to sound arrogant, but the total sum insured should demonstrate that I am in the position of being able to pursue this in the courts myself if that is the route which Brit wish to pursue. How do I stand should Brit provide counsels opinion to the FOS? Would the FOS provide this to me?

I am quite prepared to pursue this as a civil claim in the courts if the FOS do not uphold my complaint and I find that the case-workers initial decision to uphold my complaint will be helpful if things reach that point.

Any idea how many cases are subsequently reversed from caseworker to ombudsman?

Jalexa:Just a what if, but what if Brit submits a QCs opinion as its final submission?

I think a QC would struggle to justify why Brit are still messing around 18 months after the actual claimed event. It was a damaged wall that we are talking about, even though it is a very expensive wall. If it was a very complicated claim for subsidence repairs or for liability I could have understood the delay.

Brit should have reacted to the original loss adjusters report, by getting a second opinion at that point. Instead they kept on playing hard ball with the claim, only getting a second opinion a year after the event.

I do take your point however that the final submission by Brit to the Ombudsman will probably look to take apart the submissions made by the policyholder.

Huckster