what's covered by legal liability insurance - help!!

[angelic88]

Hi there,

I have a question which has been bugging me for a while. One of our neighbours has started a legal claim, saying that one of our trees has damaged their conservatory (through subsidence), coincidentally after they had it rebuilt and extended... I passed this to my contents insurance and the insurance expert report confirms that it's not our tree (which adjoins the boundary with the other neighbour), it's their rebuilding of the conservatory (as it's on a v shallow foundation). I'm no expert, but that seems probable, because we also had a crack in our adjoining conservatory after they had rebuilt theirs.

The problem is that despite of the helpful expert report, my insurance keep trying to cave in and settle this by getting me to remove the tree (although their own report finds that it did not cause the damage). This is very worrying, as we have encased asbestos panels in our conservatory, and the expert report confirms that removing the tree might lead to heave to our conservatory. I've tried to get them to confirm that they will cover the costs of removing the panels prior to tree removal (if that's ordered by the Court - unlikely based on the evidence), but they're refusing to do so, saying I should take this up with my buildings insurance. Needless to say, they also say it's not covered, as there's no damage to the building as is (the panels are safe where they are, as long as they're not disturbed). I've tried to pursue this with them, but they're not budging and have sent me a Financial Ombudsman brochure.

I'm also worried that my counterclaim of which I have told them all along (the costs of making good the damage to our conservatory after the rebuilding works) has not been included in the Court action, although it's referred to in the defense and witness statements. I've only just found out that the Court will not even consider this, as it was not included in the proper way at the proper time. Not a large sum of money, but I feel that I was misled to think it had been included, so I think they should reimburse me for that. Needless to say, they don't agree with that either.

Is bringing on Ombudsman complaint likely to help my case? Do members have any experience of this? Is there anything else I can do? I've told them that I'm not removing my tree for health and safety reasons unless they pay for this, as there's no reason to do so outside the legal case - but I'm worried that they might try to settle this anyway without my agreement and then stick me with the bill. Asbestos removal is really expensive and I couldn't afford it.

Grateful for any help and advice!! I thought the posts on the website are really good, so I'm feeling reassured already!!

Many thanks in anticipation!!

Angelic

[gyzmo]

It sounds to me as if your claim has been dealt with some underling on targets and a script that must be obeyed, when what is needed is a mind familiar with legislation and case law in insurance.

What I am thinkng is that, if the cause of their comaplaint is this tree, but that tree isn't causing the damage, then all else of their claim fails. By saying "yes I will remove the tree but you will then pay me such and such" is tantamount to admitting liability.

on saying that, I am no expert on such matters and it is a while since I last worked in insurance. But I am convinved of what I am saying.

Mosseycat is well up on insurance as are others. Hopefully someone will come along and confirm or gove better advice.

[angelic88]

Many thanks for that!! I've just re-read my thread and it's probably a bit shorthand - I've had long problems with my insurance, because they've said all along, let's just cut the tree donw anyway - I think there's something called the ABI tree root agreement, which means let's get rid of the tree, and everyone gets their fees paid. Never mind it's not causing any damage, and removing it would lead to serious health and safety risks.

So, should I just say, the expert report finds that the tree is not the cause of the dmamage, so I'm not removing it?? I think if it goes to Court, we'll win, but there's always a slight chance that we might not, in which case, who pays for removing the asbestos panels ahead of cutting down the tree which stands a real risk of causing heave??

NB: I'm pretty disllusioned with the insurance people - I've been really worried about this, and they could not have cared less!!

Grateful for your thoughts,

Many thanks,

Angelic88

[Mossycat]

Hi

The allegation was that the tree was the cause of the problem, if it has been established that the tree is not the cause of the problem then any claim for damage against you is negated (as Gyzmo stated).

There is no reason or obligation on you to remove the tree IF it is not causing damage.

If you now have a crack in your conservatory and you can establish what caused that then you have a claim, either against your own insurers (providing that subsidence or land heave is not an excluded peril) or against whoever caused the land slip (but that's really hard to prove).

If your neighbour has started a claim against you then your insurers should deal with this on your behalf, it should go something like this. The neighbour (or representative of neighbour) stands up and says "Your honour I (or my client) suffered <lists all the damage> which resulted in a cost of X because of <states reasons> and we hold owner of tree responsible".

Your representative stands up and says " Your honour we deny that we are liable for this damage and have a report compiled by <name expert> to substantiate that. Accordingly therefore we cannot see why we are liable and would ask that you find for us in this matter"

Now that's a very shortened version of what should happen in an ideal world. I would be very surprised if your neighbour is representing himself and would suspect that they have someone acting on their behalf who wouldn't issue proceedings unless they have an expert report stating it is your fault.

Question. Have you had 'discovery' yet? That is where each party sends to the other a list of documents they intend to produce in Court (and if so do they have an expert report in there?).

Now turning to your own problems, you have asbestos panels which are perferctly safe if not disturbed, therefore you have no problem at the moment. Should they pose a problem due to some peril that you are insured for then your buildings insurers are obliged to pay for their safe removal or rectification, BUT NOT UNTIL they are unsafe.

The Court is right they will not now consider a counterclaim from you in this matter because it was not within the required timeframe, HOWEVER that does not stop you issuing your own claim against your neighbour as a seperate matter. In fact to be honest it is probably more correct to keep the two issues seperate, they did some work on their property which resulted in damage to your property if you can prove this you should win.

They might well try and cloud the issue by claiming that they only carried out their work because your tree had damaged their property but that's a red herring... Even if they are correct in that accusation they still have to carry out their work in such a way that it does not cause any damage to other property.

I am assuming you have someone (your insurers) acting for you in defending this claim??

Tell them

1) The tree is not the cause as per expert report

2) You are not (unless you really want to) cutting down a tree that is NOT causing a problem

Mossycat

[angelic88]

Dear Mossycat,

great reply - many thanks!! I think I've got sucked into these really complicated arguments about who pays for what, how to settle the claim, what happens about my counter claim etc, should I complain to the Ombudsman's Office etc, when in essence it's really simple - my tree has not caused and is not causing any damage, so that's me out of it. If my insurance want to give the other side money to call this off, that's up to them (it's not my money), but I'm not cutting down the tree. I would probably agree to prune it a bit, as a good-will gesture without accepting any liability, if they pay for it. I should probably have added that the neighbour had previously complained about the tree, solely on the grounds of interfering with her suntan...so I think there were a number of ulterior motives...

One final question though - if the Court does order that the tree needs to be removed, I would obviously like to get the asbestos removed BEFORE it becoming unsafe. Who would pay for that?? I think it should be part of the legal liability cover, as it relates to settling this claim - but my legal liability insurance disagrees...this is quite worrying. I thought of going to the Ombudsman's Office just to get them to say that the insurance needs to cover this, but they take ages and I'm not sure whether they would deal with it anyway. Instinctively, I feel it might not be a good idea. There's lots of posts saying that OO aren't always helpful.

Anyway, many thanks, it's really straighthened things out for me!!

Angelic88

[Mossycat]

Hi

OK that last question is not an easy one to answer there are lots of 'if's and buts' to consider.

Insurance is purchased to cover you incase something happens, so until the asbestos is revealed or becomes unsafe the insurance are not involved. You cannot ask your insurance to remove these panels because IT MIGHT become unsafe.

If the tree surgeon takes all reasonable care when removing the tree and you suffer land-slip you MIGHT be covered under your policy (if it is not an excluded peril), but I can see your worries here, you don't want the asbestos exposed in the first place.

I'd wait and see what happens, if the Court orders removal then make it known about the asbestos and the potential consequences about land-slip etc.

Mossy

[angelic88]

Many thanks again for your help - I did write to the insurance as you suggested, saying that their expert report had shown that the tree did not cause damage, so I won't remove it - and hey presto, they're now saying that they have discussed it with the other side and are close to coming to an agreement, I think it's called a Consent Order, which won't involve removing my tree.

So that's all good. I've said that as none of this has been my fault, I shouldn't be any worse off, so would not accept any 'special conditions' imposed on me, which would make it harder for me to get home insurance. Also, as it would be a 'full and final' settlement, presumably I couldn't go to the Small Claims Court afterwards to get me own damages back (£650), so I asked that that should be reimbursed by the other side. As their costs are apparently £80,000 or so, I'm sure they could find it among the small change...it looks like my insurance are offering to pay some of the other side's costs, when it's quite likely the claim would have been dismissed if it had gone to Court, which I find really annoying - but it's presumably up to them?

What's my best options for making sure that there's nothing unfair in the Consent Order? Can I just say I won't sign until I'm happy?

Many thanks,

Angelic88

[Mossycat]

OK be careful here, a Consent Order is an agreement that both parties enter into that is legally enforceable in Court.

Be very clear what you are entering into and what obligations and rights it puts you under and gives you.

Their costs are £80,000 ??????? I'm shocked and wonder what exactly that includes. Can you get a breakdown?

Ask for a copy of the draft Consent Form before it is agreed, that will tell you what is proposed.

I'm not sure that they will accept your costs, and quite honestly I would make a seperate claim for them, just ensure that nothing in the Consent Order prevents or excludes you from doing this.

IF it's a full and final setllement it's a full and final settlement of this issue, because your costs were not included in this issue any settlement wouldn't normally affect that.

Mossy

[gyzmo]

£80 grand????? You could build a nice little house for that! Can a case be kicked out for extortion? Did they use Carter Ruck for half an hour? Just want to re-emphasise Mosseys suggestion of getting a breakdown of costs.

[angelic88]

...err, yes - and to think that they're steadfastly resisting my modest counterclaim of £650...I think they've put in everything and the kitchen sink and paid themselves top rates (not that they deserve them!!) - anyway, I've taken Mossy's suggestion and have asked for a breakdown of costs - nothing so far - will look at it closely when I get it.

Angelic (=cheap at the price...)

[angelic88]

...the plot thickens...

I've not had a list of costs, but the other side have apparently sent in a Section 36 (?) offer, for just a whisker less than they're seeking anyway. My insurance say they're really worried about the other side winning the case and then we have to pay more if we turned down the Section 36 offer. I've said again that their own advice says, I'm not at fault here, so why would we lose (as our expert evidence is really good and explains it really well). I've also said that as the expert evidence shows that I'm innocent as charged, I should be no worse off as a result, i.e. would not want to have to cut the tree back year or year, when it's stopped growing years ago and it's not causing damage anyway.

The trial date is set for 1.12., and I'm worried that nothing much will happen until the last minute and then they'll try to get me to agree to a Consent Order will all sorts thrown in, or alternatively say they're not going to represent me anymore. Am I worrying unnecessarily?? And if not, what's my best way forward, to prevent this happening??

Many thanks in anticipation - much appreciated!!

Angelic88