Thanks for the responses.

Have spoken with Brit this morning and they confirmed that the report will be an open report ie. I will get a copy. Which suggests to me that they must be pretty confident about what the surveyor is going to say :-(

I'm going to be away for a week, so will update the thread on my return.

One quick question - if I go to the FOS and my complaint is upheld, is it reasonable for me to claim my legal costs incurred in pursuing the other parties following Brit's refusal?

pford75

You have just got to hope that the surveyor acts with some professional integrity.

The FOS is unlikely to recommend that Brit pays all of your legal costs, even if you only incurred these after Brit refused the claim. You could ask for the FOS to consider this matter as in normal circumstances Brit would have incurred these costs and not you when they tried to recover under their subrogation rights.

Have a good week away. Don't be surprised if the surveyors report is not on your doormat when you get back. It may take a few weeks for the surveyor to consider the matter fully and report his findings.

Huckster

Update - Now have the surveyors report.

In summary - it's as expected. The surveyor has sided with the insurers. The report is lengthy and correctly captures the events leading up to the collapse of the wall and details of the site etc. The surveyor comments on 2 sections of the wall which are in his opinion 'leaning' and require support or rebuilding. He also points to some sections of 'friable lime mortar' and '1 missing flint' and 'hard re-pointing which we suspect contains Portland cement'

The key section of his report: "In my opinion the collapse that occurred in Seot 2008...was caused by exposure of the weak rubble core following progressive loss of the flint facing. Without a flint facing the core has no intrinsic durability and is essentially unstable. The flint facing fell away because highly friable and already depleted old lime pointing was washed away by the spray. Importantly I consider that the condition of that pointing was almost certainly very poor...this is circumstantially demonstrated by the condition elsewhere"

He goes on to recommend "We recommend that all areas of depleted pointing is renewed.....potentially structurally unstable sections of the wall should be rebuilt or otherwise stabilised"

So - I'm annoyed (although I didn't honestly expect anything different from this 'independant' surveyor). My thoughts as follows:

1. How relevant is any report on the condition of a wall 11 months after the original loss? I would argue that a missing flint or friable mortar in August 2009 has no relevance to the condition of the wall in September 2008. Insurers had ample opportunity to inspect before that time....they did and their own loss adjusters concluded that the claim should be paid

2. The length of wall runs for several hundred metres. I agree that there are sections of friable pointing, but equally there are sections of stable pointing - How can he be so sure "almost certainly" that the collapsed section was in poor repair - My photos would indicate otherwise.

3. If the poor maintenance and need for repair was so obvious, why was it not spotted and raised when insurers own surveyor conducted a full risk assessment of the property apx 9 months before this loss? My argument being, either the wall was not in need of repair at that time, or the need for repair was not easily identifiable to someone without specialist expertise.

I'm going to go to the ombudsman - I would welcome thoughts on the above and whether you feel I should commission my own survey before putting my case before the ombudsman?

You have to bear in mind that the surveyer will be making a report as a surveyer and thus will be reporting on the actual construction and condition of the wall, he would not have been in the position to comment on the actual validity of the claim.

As the surveyer was independent and no doubt suitably qualified he will be classed as independent by the Insurers and also by the ombudsman should you pass the claim to him.

With regard to your arguement over the surveyer that the Insurers sent out who performed a risk assesement, they would have performed this on the Insurers behalf and it is basically to ensure you have the correct sum insured and carry out any obvious works that may have needed doing. They generally not do a full structural surveyor which would have picked up the potential problems with the wall. They generally do a flying visit, take measurements so they can calculate rebuild costs and cast an eye over the structure for potential problems.

Your arguement in point 3 about the need for repair not being obvious does not make much difference as Insurance does not cover maintenance issues / wear and tear irrespective of whether the damage is not easily identifiable (Although the Ombudsman may look sympathetically on this)

In my experience of cases that are at this position, you will find the Insurers will not want to change their stance as they will look on it that they have gone to the expense of employing the services of an independent surveyer who has backed their decision.

It could be worth considering employing the services of a Loss Assessor but on a no win no fee basis, then if they do succeed in overturning the decision they get paid, if they don't then you have not lost out. I suspect they will base their arguement of the definition of a flood which does not neccessarily mean what you expect, there are definitions that the ombudsman has backed of a flood being any build up of water for instance water accumulating on a flat roof.

The other option (This can be taken after the above before) is to go to the Ombudsman, this can take many months.

After going to the Ombudsman you can still resort to the courts although they tend to look at things less sympathetically than the Ombudsman will.

The other option is to contact one of the Financial Agony Aunts such as Jessica in the Saturday Telegraph Financial Supplement. They often get results where you would not expect them (They normally will not take a case on while it is being dealt with by the Ombudsman or a Loss Assessor. They often do not like taking on cases the Ombudsman has not upheld either)

I take your point about the surveyor - but surely if it were that simple, then I could contract an 'independant' surveyor with a different opinion. I don't believe that any surveyor who is contracted on a regular basis by the same insurer is ever truly independant. (If they repeatedly found against the insurers, they wouldn't be used again)

As for the survey - this was more than a valuation, since he conducted a full 'risk assessment' and commented on some fairly detailed matters (He requested the installation of a leak detection system on a pressurised water tank). As I understand it, the extent to which maintenance is readily detectable is important. I have been reading past Ombudsman cases and where the maintenance is not obvious to the lay person, the ombudsman found in the insureds favour (If I couldn't be expected to know that the wall required maintenance from a visual inspection, is it unreasonable for the insurer to refuse the claim).

Not really keen on going to the papers since I believe I have a pretty consistent trail of communications with insurers myself.

What are your views on the delay between the loss (Sept 08) and the survey (Aug 09)? I don't see how a survey can be material after this time (especially when the survey at the time by their own loss adjuster found in my favour)

pford75:

I believe you have a strong case to go to the FOS but I would suggest that you obtain an expert report from a Flint wall specialist, before you submit your complaint.

The independent(?) surveyor who recently reported, has only read up on issues regarding flint walls and has produced a report which cannot adequately deal with the cause of the wall collapse. He is only guessing as to what the cause was. The FOS will attach more weight to the original loss adjusters report, as the site visit was conducted nearer to the loss date.

The FOS will also look at the how Brit assessed the risk, after the claim for the wall in 2006. If Brit paid out £100k for the wall in 2006, the FOS will judge that Brit should have take care to assess the future risk, by looking at the wall in particular very closely.

Perhaps maintenance was an issue in the loss. A bit difficult to prove a year after the loss date. I suspect the flint wall specialist can explain how the wall could have deteriorated in between the loss date and the latest survey. If so, this will also help diminish the value/weight of recent survey and increase the value/weight of the orignal loss adjusters report.

If Brit have issued their final reponse letter proceed to the FOS. If not and you obtain a positive wall speclialist report, you might want Brit to consider this before you go to the FOS. As Dacourt has mentioned the FOS might not rule on this for several months, in the meantime I guess you will under pressure from the authorities about the wall.

Huckster

Thankyou all very much for your comments and feedback.

Today I commissioned my own surveyor who will produce a report. In retrospect, it is quite useful having the Brit report since I can ask my surveyor to address specific points made by Brit's surveyor, rather than produce a general report.

There's a lot of material in the Brit report, but having read and re-read several times, the crux seems to be the point where the surveyor says

"The flooding was the straw that broke the camels back, had the wall been adequately and aptly maintained, then the flooding would not have caused the wall to collapse". There are many other points as well, but this seems the key one and I have both found similar case reports from the FOS website and have discussed with my surveyor and feel confident that we can prove that even a well maintained wall (of this type) can collapse under prolonged flood/splash.

One question - The Brit surveyor keeps referring to 'progressive' failure. Is this an attempt to cover their back by suggesting that this was due to gradually operating cause? When is something not progressive....from the first flint coming out to the collapse of the wall was apx 36 hours. Any tips on how to avoid the 'progressive' clause (after all...all structural failures are by definition 'progressive')

Just for the record, the 'independant' surveyors report is dated 11 months after the actual loss. Yet he states quite categorically that he considers that the collapsed section of wall was in a "very poor state of repair".

Given that there is no wall there any more, that the adjoining sections of wall are well maintained and the photographic evidence I have of the wall before collapse certainly doesn't show a wall in poor repair, I do wonder how Brit expect me to accept a report which arrives almost 1 year after the original loss!!!

pford75:

Just for the record, the 'independant' surveyors report is dated 11 months after the actual loss. Yet he states quite categorically that he considers that the collapsed section of wall was in a "very poor state of repair".

Given that there is no wall there any more, that the adjoining sections of wall are well maintained and the photographic evidence I have of the wall before collapse certainly doesn't show a wall in poor repair, I do wonder how Brit expect me to accept a report which arrives almost 1 year after the original loss!!!

The 'independant' report is nothing of the sort. All he has done is make a case that the wall was not maintained and therefore due to a gradually operating cause the wall has collapsed. From what you have said the surveyor was not particularly enamoured with flint stone wall construction and has probably produced the report using reference books. Whilst the surveyor has to conduct his work in a professional manner, he would have been compromised into favouring Brit, otherwise what are the chances of him receiving similar work in the future.

I think if your own surveyor backs your case that the proximate cause was the flood, in line with the first loss adjusters report, I think the FOS will decide in your favour. The FOS could well also make a comment about the behaviour of Brit in dragging out the claim for 11 months and then trying to avoid using a debateable surveyors report. If Brit had a problem with the claim, why did they not arrange for another survey 9 or 10 months ago!!

In my opinion Brit would be mad to let this go to the FOS. If the FOS rule against Brit, which is likely, details of the case will be published. As a result Brit stand to lose business as their reputation will take a hit. Can you imagine if the FOS commented on the 11 month claim delay, saying it was a bit late to be turning claim down due to a gradually operating cause. If you were a mid/high networth broker reading the FOS case review, would you place your clients business with them?

Huckster

Well - today I had my own structural engineer and historic buildings surveyors attend to inspect the wall.

I had constructed a timeline of events and also shared the Brit report with them. They are going to prepare a full report, but the key points:

1. In their view, even a wall in a perfect state of repair (but of the same construction as my wall) would not have withstood the constant soaking demonstrated in the photos provided over the period of time it occured (ie. poor maintenance is not the cause...flood is)

2. They disagree with the comments re: friable pointing - in their opinion the wall is in a reasonable state of repair and maintenance commensurate with it's age.

3. To be honest, no surveyor can adequately comment on the condition of the wall at the time of collapse since apx 1 year has passed and walls of this nature can change considerably in this period. In their view, the loss adjuster (who saw the flood and the remaining wall before demolition) would have had the most accurate impression of cause.

4. They disagree on the comments made by Brit's surveyor re: a leaning section of wall. In their expert opinion, this certainly is not progressive or at risk of collapse. It is a historical wall and part of the charm and aesthetic value is the fact that it is not perfectly straight. This does not mean the wall has not been maintained - would they suggest that the sloping floorboards in a cottage should be maintained?

5. They searched through the pile of spoil which was left when the wall was demolished to make it safe. They located multiple 'chunks' of flint facing which clearly demonstrate that the pointing was in good condition (even after 1 year of sitting in a pile of rubble)

They were 'quite embarassed' at the level of bias demonstrated in the Brit report by someone in their profession.

pford75:

They were 'quite embarassed' at the level of bias demonstrated in the Brit report by someone in their profession.

This is going to do Brit and the 'independent' surveyor no favours. Brit will lose the case and future business when the case study is issued by the FOS. The findings will be quite critical of Brit and I am sure mid/high networth brokers may decide not to place business with them. As for the surveyor I doubt Brit will give him any more work, even if he was trying to be helpful.

When you get the report, if Brit have not issued their final response, give them 7 days to read the report and agree to deal with the claim, otherwise you will proceed to the FOS and will also add ask them to consider all your extra costs. I believe you should ask Brit to pay for the extra reports you have commissioned as I think the FOS could make Brit pay these.

The point of giving Brit another chance is that they may cave in and deal with the claim. This may be quicker than the FOS route which could take a few months.

Huckster

I was wondering about this. Since Brit have already given their 'final view' from the complaints team, enabling me to go to the FOS, is there any benefit in going back to Brit with my own surveyors report? I wondered if it might not be better to go straight to the FOS and not give Brit the chance to build all their arguments against my case...what do you think?

I don't hold out much hope of Brit changing their minds at this late stage (they appear to be making emotional rather than logical decisions), so wonder why I wouldn't just shortcut the process.

If Brit have issued their final decision, then go to the FOS, but before your submit, give the FOS a call to ask about timescales. If this is going to take awhile and cause you difficulty with your local authority, ask the FOS if there is a way to fast track the case.

I may be wrong but I think the FOS send Brit details of your complaint and ask them for their comments as part of the process. If this is the case perhaps it would not be sensible to send them a copy now, as this would give Brit too much time to make contrary arguments.

If the FOS process is going to take 3 months, then you might consider giving Brit one last chance, by sending them a copy of the report findings( not the whole report). If in the letter you advise them that your surveyors/SER report has demolished the arguments made in the 'independent' surveyors report and that you are giving them 7 more day to reconsider before going to the FOS, they may have a change of heart. If the findings are that clear Brit would be daft not to change their mind.

Huckster

Have today received the report from my own structural engineer/surveyor. I have copied the conclusion of his lengthy report below:-

"I do not remotely agree that the wall collapsed as a result of it having been initially in a poor state of repair prior to these events.

From what I can see of the remaining sections of wall and of those large remnants on site, I consider it to have been in good repair and quite capable of surviving many more decades had it not been for the road floods. That it survived for as long as it did, under this onslaught, I consider testament to that view.

The wall therefore collapsed as a direct result of a major alteration in the environmental conditions it was subjected to, and was the successive events of a section of road flooding from which the constant flushing from the heavy vehicle spray broke down the lime mortar to the point of promoting a domino effect failure, exactly as one would expect to occur in such circumstances. The failure was not as a result of the wall being faced with existing mortar that had previously suffered from frost damage as the wall face was intact, which would not have been the case had it been already suffering from frost damage. This is state is clearly evidenced in Photograph 1 of Richard Jackson’s Report.

The only way in which the remaining lengths of wall will suffer a similar collapse, is if the road adjacent to them also floods to a similar depth and if the Authorities again fail to act effectively in clearing the drainage in good time."