Huckster

I have been trying to do as much rading as possible and it's always helpful to have a forum like this to bounce ideas off.

I agree with you on the flint wall, since I believe this is a key point. As mentioned in my post above, I don't believe that Brit could successfully prove poor maintenance. I feel it is more likely that they/their surveyor will pursue a line of suggesting that a flood over 2-3 days couldn't cause the collapse of a wall and therefore it must have been weathering.

I had to do a substantial amount of research during the re-construction of the tree damaged wall (which was also flint) and I believe the construction is critical. The wall is flint/rubble...ie. the facings are flint, but the core of the wall is simply rubble infill. The structural integrity of the wall relies upon the external flint facings remaining in place, since once the rubble core is exposed, it is quickly washed away.

Furthermore, a wall of this age is not constructed with cement - it is lime mortar. Lime can be washed away by water much more easily than cement. Once 2-3 flints were washed out of the wall, the degradation from there was rapid. In my opinion, the fact that it is a retaining wall is also key...since once the wall became weakened in the middle, the pressure from behind caused it to collapse.

I had previously provided photos of the flooding on the day in question and of the wall when the first flints were washed out. It may also help that I had officials from the county council highways team out to inspect the wall/road because of the flooding on the day it collapsed.

Thanks for the advice on questions/answers - will make sure to keep a record.

pford75

Agreed that the flint wall construction issue is vital. Was the wall damaged by the flood, the same part of the wall which was rebuilt when the tree fell on it? If so Insurers would have been responsible for contracting the works and would be responsible if the works were later found to be defective. This would be another angle to look at if relevant. I have known Insurers to open up a previous claim and pay additional sums if it is later found out the works they paid for were defective.

Just a thought.

Huckster

No, this is a different section of wall. Will keep you updated.

If it comes to the FOS and both sides have surveyors with different opinions, what is the likely outcome?

pford75

The FOS will weigh up the evidence on either side of the argument, look at previous case history and make a decision. Stating the obvious really.In your favour possibly is the delay in Brit dealing with the claim.

I think this case is too close to call. I think the important information which will help you are 1) Proof that you proactively tried to deal with the drainage issue 2) The condition of the wall, 3) Rainfall information from the local met office 4) Flint wall construction expert report or expert opinion from surveyor with knowledge of this type of construction.

The FOS would also need to decide whether it was reasonable for the policyholder to know about weaknesses of a flint wall with lime mortar that could have been washed away in a prolonged flood. Did the policyholder take reasonable precautions to prevent the flood from causing the loss. The condition of the wall at the time of the loss as far as it can be established.

Alot of information for the FOS to consider if you need to go that far. Hopefully the independant surveyor will report in your favour.

Huckster

Bear in mind that the survey by the Insurers is not normally a structural survey, it is normally a survey to ensure the home is insured for the correct premium, any major issues the Insurers want corrected and often includes a review of security / health and safety.

I've been reading and keeping up with this thread for some time now and with great interest.

My personal view is that this will (eventually!) be settled in the Insured's favour. Percentage/chance 90/10.

The Insured party has done all they can to minimise a loss/consequential losses and, as far as I can see and going by standard policy wording, has complied with all that has been expected. It seems as though Brit are trying to wriggle out of this one which surprises me given the amount of the claim and reserve that would have been put on this. It's relatively high profile as far as one single policy goes. Additionally the FOS frown upon this sort of repudiation.

4. Then in 2008, flooding caused the collapse of the wall....which Brit are now suggesting might have been due to poor maintenance. (in fact, I struggle to be certain on exactly what basis Brit are refusing the claim...is it poor maintenance, gradually operating cause or something else?)

On the face of it the proximate cause appears to be excessive weathering and the term 'flood' is open to interpretation. 'Weathering' is not an insurable peril whereby 'flood' or 'storm' usually are insurable perils with any decent policy. I think the point Brit are trying to make here is whether several events of excessive water caused the damage (ie. gradual) or whether one single event of flooding or storm caused the damage. It is unlikely that one single event of flooding or storm would damage the wall; even given the fact it's construction is lime mortar. As stated the term 'flood' is open to interpretation and insurers tend to think of 'flood' as 'flash flooding' which simply isn't the case. Depending on the duration of water building up, several events could be deemed as 'flood'.

Additionally the initial fact finding for this type of risk asks for the construction type of the buildings only. This does stretch to outbuildings but does not specify for walls which are not buildings. If a surveyor has been to inspect the property but has failed to identify the potential problem which could occur if they are going down the road of 'poor maintenance' then this should be flagged up with the surveyor's Professional Indemnity insurer. Brit would usually approach this method under their subrogation rights and especially where they appointed them! Given the value of the buildings sum insured and the fact that buildings cover has been requested, Brit would be negligent by not instructing a structural survey; but that's their problem.

This is definitely one to see through to the end and I don't think the Insured will have any problem with the settlement of this claim - however long it takes; with some compensation. I would keep a note of all expenses paid including unpaid leave at work, communications to third parties notifying them of damges etc.

Good luck and PLEASE keep us updated!

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Coyote

Coyote

Many good points in your post.

I think the reason Brit are trying to avoid the claim, is the value of the previous claim when a tree fell on part of the wall. This was for £100k in 2006.

Had this claim for flood been in isolation i.e. no previous claim on record, I am pretty sure that Brit would have been more helpful.

You are right that the Insurers should have perhaps conducted a more throrough survey in the past, looking at all aspects of risk. My understanding in respect of high net worth risks, is that many Insurers carry out a very comprehensive survey, when a policy is started or following a large claim. It would have been the fault of Brit not to have looked at the risks associated with the wall. After all, they did pay £100k for only part of the wall, so they were aware of the potential.

It will be interesting what the FOS rule on this if it gets that far. I am not sure how an Independent surveyor can come up with a conclusive report on the cause of a loss more than 6 months later. If the report only provides information and an opinion which is inconclusive, I think Brit will be stuck not knowing what to do. I would think it would be sensible to pay the claim, rather than risk setting many precedents with an upheld decision by the FOS. The FOS if they decide in favour of the policyholder will not only tell them to pay the claim, but it may comment on the risk assessment process. This will embarrass Brit who will have to make changes and other Insurers of high risk properties/non standard construction will also have to look at risk assessment processes.

Huckster

Coyote & Huckster - thankyou both for your interest and advice. I feel like i've been banging my head against this for so long that it is good to have someone else share a positive view, even if that's not all I need.

Brit's structural engineer visited today. He inspected the full length of the wall (included the newly rebuilt section from the tree damage). We discussed various aspects and I provided him with several photographs

1. Several photos of the wall before collapse, demonstrating that it was not bowed. tilting or missing flints and to my inexpert eye appears in good state of repair

2. Photos of the flooding demonstrating the depth and breadth of the water and also showing it splashing against the full height of the wall

3. Photos when the first 4-5 flints fell out of the wall, exposing the rubble core

4. Photos of the first stage of collapse when a large section of flint facing dropped off (apx 8 hrs after first flints fell out)

5. A copy of the 'dangerous structures notice' served by the district council giving me 14 days to take the remaining section of wall down

6. A technical pamphlet from SPAB (Society for the protection of ancient buildings) on flint wall care and repair. This pamphlet specifically comments on the problems if water is allowed to wash repeatedly over flint walls ("the lime mortar is quickly washed away") and how quickly flintwork can degrade "Once any facing flints on the outer skin are dislodged, degradation is rapid and the structural integrity of the wall is compromised"

He seemed a little surprised by my 'briefing pack', but accepted them politely. Over a period of apx 2 hrs, he inspected the remaining wall and commented that he felt it was 'badly bowed'. (He had been using a plumbline to assess the lean on the wall - There is one older section of wall which I agree is leaning, but the section which collapsed was not (demonstrated in the photos) and nor is the adjoining section. He made the slightly flippant comment "I'd be surprised if this wall lasts the decade"....I pointed out that it has lasted 250 years so far....so why does he feel it won't last any further? Got the impression that he was not a fan of lime mortar, nor an expert in flintwork and seemed to be assessing this wall against modern construction standards. (Just because an old wall is not perfectly straight, it doesn't make it structurally unsound)

I'm not holding out much hope that he will produce an 'independant' report and I expect him to side with insurers. Therefore, I have today been speaking with structural engineers and surveyors with specialist expertise in flintwork and historic buildings. I'm planning to await the report from the surveyor and assuming it is unfavourable, will commission my own report before going to the ombudsman.

Continued in next post

Continued from previous post

Coyote - I am encouraged by your view. I am no expert in these matters, but I think your key point is that I feel that I have done everything in my power to try and avoid/minimise this loss. There is nothing which I feel I could have reasonably been expected to do which would have prevented this.

If going before the ombudsman, I was currently planning my argument along several lines:

1. The wall was in a good state of repair

Evidenced by photographs - to the average householder there were no obvious faults. Indeed, Brit's own surveyors failed to spot or highlight any lack of maintenance or structural problems following their recent visits to the property which involved not only a complete revaluation, but a major claim on the wall in question. I may also be able to provide independant witness statements (if this is relevant) from villagers and the council conservation officer that the wall was in a reasonable state of repair. (Brits surveyor may argue that it was not....but I cannot see how he can prove that based upon an inspection almost 12 months after the initial loss). Also commission my own surveyors report to document that the remaining wall is in a reasonable state of repair.

2. Brit had several opportunities to declare this an uninsurable risk or to impose restrictions on the policy

Following the initial tree damage claim, there was considerable correspondance, a major claim, a revaluation survey and a site visit from a senior technical claims representative from Brit and also an annual renewal. This should have provided plenty of opportunity to identify any problems. But instead, Brit simply increased the policy cover and accepted the higher premiums. My argument being that if Brit couldnt spot any problems given all of the above, how could I as an ordinary householder be expected to do differently?

3. Walls of traditional flint/rubble construction with lime mortar are susceptible to water damage and can degrade rapidly

Provide technical information documenting the impact of water splash on lime pointing and the rapid degradation once the rubble core is exposed. Also augment with my own surveyors report if required.

4. I have taken all reasonable steps to avoid/mitigate the loss

I can demonstrate communication with County Council highways immediately upon flooding, communcation with conservation officer to request his support in pushing highways for rapid resolution, I pursued county council following initial collapse and they agreed (without prejudice) to meet the costs of dismantling the dangerous section. Following initial refusal of the claim, I have incurred personal legal costs in excess of £10k pursuing litigation against both county council and the private developer responsible for the blockage of the road drain (causing the flood). This has involved not only considerable financial outlay, but significant time on my part (at least 7 days to date)

5. Brit's own loss adjusters agreed flood damage and recommended settlement of the claim

The only people who visited the site at the time of the claim were Brit's loss adjusters and they agreed that flood was the cause. Brit seem to have ignored this advice without any further site visit or inspection and only after an official complaint have sent a specialist surveyor almost 12 months after the loss (when the wall has been removed and the cause of flooding resolved)

6. Constant road splash over an extended period constitues flooding and not weathering

On each occasion of rainfall, the flooding was severe (demonstrated by photos) and I took all reasonable steps from the moment of the first incidence of flood to resolve the problem. This flooding recurred several times during a short period and under the 1998 ruling by the Court of Appeal (Rohan Investments Ltd v Cunningham) the court held that a flood could originate from an accumulation of water and Lord Justice Auld went further and indicated that a flood could arise from the slow and steady build-up of water

I'd really welcome a critical appraisal of the above - be brutally honest. Should I add to the list? Should I leave some out if they are not as compelling as others? I simply cannot afford to lose this :-(

How relevant to the overall FOS submission is the overall level of cover etc.? Does the FOS take the view that in respect of the total cover, this is actually a relatively small claim or does this not matter?

Pford75

I have a feeling that the 'Independant Surveyor' may have a friendly dispostion towards Brit being that he was paid a healthy fee. You may have put him in a difficult situation with all the evidence you have gathered, as he might have difficulty being categoric about the cause of the wall collapsing. I think it would be very unfair if he made a judgement about the wall collapsing, based on looking at bowing in another section of the wall 12 months on from the loss event. As you have said these flint walls will not be perfect if plumb line is used.This is where a report from a flint wall expert may help.

The only possible argument the surveyor could use, is that the wall may not have been maintained as it should have, based on bowing wall and extra duty of home owner of a grade 2 listed property to maintain a feature with an inbuilt weakness. The FOS could also comment that a property owner of a grade 2 listed property has a greater responsibility to have knowledge of maintenance of the type of property and regularly (yearly) contract inspections of features which have inbuilt weaknesses. In bold below is something which I found online. Does the wall have protective capping or was this not an original feature of the wall type in quesion?

The design of the protective capping or water-shedding coping of a free standing flint boundary wall is of great importance. The failure of this top protection will lead to the rapid washing out of the mortar core and matrix by driving wind and rain resulting in inevitable collapse.

In regard to the point in your last post.

1) Photographs would be helpful, plus any expert or official reports/statements would help. These may counter any less than Independant surveyors findings made 12 months after loss. The FOS may then advise that the first surveyors report recommending payment of the claim is the most relevant. If ths first surveyor had issues with maintenance, this would have been mentioned in the first report. I think the delay in Brit dealing with the claim and weight of particular evidence, goes against Brit, as the FOS is bound to give more weight to freshness of first surveyors report.

2) Agreed, Brit having paid out £100k in 2006 should have made full risk assessment. I have mentioned in earlier post, my understanding is that such risks would require a full survey looking at all aspects. Brit would have been negligent from a risk mitigation point of view not to have looked at the wall. It is up to the policyholder to maintain a property in good repair but for a high value risk, Insurers would have more responsibility than normal due to extent of risk exposure.

3)Agreed technical information regarding maintenance/issues with flint walls would help

4)Agreed. Proactively dealing with this, exploring all avenues. This may help Brit if they paid out, as they might wish to pursue owner of blocked drain to recover costs.

5) and 6) agreed.

Do not be surprised if the surveyor who visited yesterday takes sometime to issue the report. As I said before the surveyor is going to find it difficult to issue conclusive findings, so will be doing a lot of head scratching, no doubt researching reference books on flint walls. Make sure you are also provided with a copy of the report at the same time as Brit. Ask Brit to make sure this happens, otherwise Brit may sit on the report for a few weeks and you will be none the wiser.

I am of the opinion that Brit would be silly to let this go to the FOS for the reasons I gave before. Even if they get a patsy of a report from the 'Independant Surveyor', if you can counteract with evidence, the FOS would find it difficult to repudiate.

Huckster

Sorry, it's extremely late in the evening and I'll reply with my opinion on the entire post tomorrow.

However, it's either very late and I'm missing something/confused here because this seems too simple....but...

"4. I have taken all reasonable steps to avoid/mitigate the loss"

"county council and the private developer responsible for the blockage of the road drain (causing the flood)"

So are you suggesting that the blockage in the road drain to which someone else is culpable is the cause of the water build up thus flooding the area/site which caused the collapse/bowing of the wall? If so, I think I've just found you a new proximate cause!? A proximate cause is the dominating factor leading to a loss. I would suggest in view of the original structure standing for 250 years prior without any known problems that the poor maintenance to drainage systems, which you have no control over, is the proximate cause; therefore paid out by your insurer and damages claimed off those responsible under subrogation.

The fact is that the rain water alone would not be enough to cause damage to that wall. Over the past 250 years the UK has suffered many bad weather conditions including heavy storms and high winds probably more-so than in any recent times with no obvious signs of erosion; yet the lime mortar has braved every other occasion? Hmm. I think not. Therefore it cannot be simply 'Weathering' as a cause. It's flood. HOWEVER the build up of water damaged the wall by washing away the lime mortar etc. Had the drainage been suitably maintained and kept in good working order, the blockage would not have occurred, therefore no build up of water... thus no damage and no claim.
(NB: If blockage was caused by a contractor/developer by waste during the course of his works then this changes the sequence of events and poor maintenance is no longer the proximate cause but rather blockage by a negligent act! [although under his Public Liability policy they may not cover this as per gradual pollution unless it relates to one occurrence] - don't worry about this, I'm deviating from the point really at this stage)

So to conclude: I believe the dominant cause not to be weathering and it's not flood although the flood is contributory. The dominant cause is the poor maintained/blocked drain.

Game. Set. Match...? (sounds much more trendy than 'and I rest my case'!) lol

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Coyote

Coyote - You are correct in your deduction.

There is a storm drain in the highway right by the section of affected wall. This drain became blocked, causing severe flooding of the highway.

Highways did then undertake an investigation and it seems that this road drain was supposed to drain into a drainage ditch on private land opposite my house. This land was being developed by a local property developer and they had filled the ditch in, meaning the road drain had nowhere to drain to.

There was a lot of communication back and forth between myself, Highways and the developer and all of this information was provided to Brit. I actually made the cause of the flood clear in my claim and suggested that they settle and counter-claim against Highways/the developer. They didn't respond to this suggestion and simply refused the claim as described.

I have since been pursuing my own private legal action (which is still ongoing), but reverted back to my insurers as the legal bills have been escalating. (with highways blaming the developer and the developers insurers denying liability)

I'm new to this insurance stuff, so forgive me if this is a stupid question....but can you explain the proximate cause bit? In laymans terms, does this mean that Brit should settle and pursue the other party? How should I phrase this in my ombudsman case? What is subrogation? (sorry for the basic questions)

Huckster - Yes the wall does have coping and it is clear from the remaining wall that this is in a good state of repair. Are Brit obliged to provide a copy of their surveyors report?

pford75

Definitions

Proximate cause

The immediate or effective cause of an event, not necessarily the one closest in time to the loss, having been defined in the court case of Pawsey v Scottish Union and National in 1907 as 'Proximate cause means the active, efficient cause that sets in motion a train of events which brings about a result, without the intervention of any force started and working actively from a new and independent source.

Subrogation

In contracts of indemnity, the right of an insurer to stand in the place of the insured and exercise all rights and remedies available to the insured, whether already enforced or not.

Proximate cause is the blocked drain which caused the flood and led to the collapse of the wall. Coyote is right that in normal circumstances you would expect your Insurers to pay out and under subrogation they would reclaim via the property developer/highways authority. The issue for Brit is that they can see that they will have difficulty in reclaiming any outlay from the developer/highways authority, as evidenced by what you have sent to Brit. So, they have then obviously had an internal discussion ' how can we get out of paying the claim? Lets try to muddy the waters by saying that the proximate cause was not flooding, it was weathering and lack of maintenance. Because they could not back up their position, they have then dragged the matter on, seeing how your case with the developer/highways has moved on. Now that you have complained they have sought another 'independant' opinion but 12 months on, so what is the value of such an opinion . Insurers would not normally provide a copy of a surveyors report they have paid for but in the circumstances, I would ask them. What reason could Brit give not to do this. It is 'independant' after all!!.

I think the delaying tactics of Brit will go against them if they let this go to the FOS. If I was submitting a case to the FOS, I would do a timeline on one page, setting out how long this matter has been going on for. Then in the supporting documents, I would put in a positive case for flooding being the cause backed by evidence, countering any suggestion of weathering/maintenance being the cause.

Huckster

An insurance policy covers a particular loss caused by an insured peril. Insurers will look first at the relationship between the peril and the loss to establish the proximate cause of the loss. Was defined in 1907 Pawsey v Scottish Union/National.

Proximate cause means the "active, efficient cause that sets in motion a train of events which brings about a result without the intervention of any force started and working actively from a new and independent source". The proximate cause of an occurrence is always the dominant cause and there is a direct link between it and the resulting loss.

A single event is not always the direct cause of a loss. A loss sometimes occurs following a train of events. Think about dominoes, all standing in a row. The first domino is pushed over, knocking the second which in turn knocks the third until they have all fallen. The push of the first domino sets in motion the train of events which brings about the fall of the last domino. If the fall of the loss domino is the loss, then the push of the first domino is the proximate cause of the loss. IF however one of the dominoes does not fall as a result of the first domino falling but is pushed by an onlooker, then the train of events stops and the intervention of a new force independent from the original train of events becomes the cause of the fall of the last domino and therefore the new proximate cause of the loss.

Subrogation is "the right of one person having indemnified another under a legal obligation to do so to stand in the place of that other and avail himself of all the rights and remedies of that other whether already enforced or not". Basically it is the rights of the insurer who has indemnified an insured to persue any right of action available which may reduce the insurer's loss. It's an automatic right in because a contract of indemnity an insured party cannot recover their loss a second time from another source if their insurer has settled the claim.

The Insurer's limitation is that they cannot recover from a third party before they have actually settled the Insured's claim.

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Coyote

Damn - The Hucks beat me to it lol!

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Coyote