Prooving Damage?

[james22008]

Hello,

 

I wonder if anyone can help. Our car was a declared a total loss after an accident (3rd party accepted full liability) and our insurers gave us the value of the car minus £1000 for "pre-existing damage"

 

This damage is substantial and was not there before.

 

They say it can't have happened during the accident and we are saying it could, and if it didn't then it will have happened in the salvage yard.

 

We have gone through months of discussions with the Financial Ombudsman but there stance is simply that we have to prove that the car was not damage before the accident.

 

We have 5 people who will testify this statement is true, but they say this will have no bearing on the decision. I have asked how else we can possibly prove our car was fine and they say we basically can't unless we have a photo of the car the morning before the accident.

 

I have asked for the insurers evidence backing up their claim that this was pre-existing and was told that there is none. It's our word against the insurers, but it's simply becasue the insurance engineer is an 'expert' that they will side with him over us.

 

Is there any way we can prove the age or nature of damage? We are happy to pay experts etc as are confident these costs (and more) will be recovered in a court of law and are 100% sure if done right they will show the damage happened during or after the accident.

Edited January 9, 2009 by james22008

[james22008]

Anybody?

 

Is there anything to stop us from claiming twice on one accident? If our insurers are going to go down the route that this isn't damage from the accident, can we claim separately even though they have paid out for the accident damage (total loss)?

 

We have had the damage valued at £1500 by an independent engineer

[Lula]

Well I think, (hopeully, someone in the know will come along and advise), that you can take the other party to court for your "uninsured losses". What sort of damage is the insurance company alleging was already there?

[james22008]

2 long scratches - but it's from the wing to the boot pretty much. The car scraped past trees and bushes both on entry to the ditch and when being pulled out.

 

But apparently this is not the cause.

[gyzmo]

It is a general principle of insurance, and tort, that "he who accuses must prove". In insurance, this means it is down to you to prove that the damage claimed for was caused as a result of the incident covered under the policy.

 

This however is usually watered down somewhat, insomuch that the insurer basically takes your word for it unless there is something untoward. even then, imho, it is up to the insurer to refute that damage was not caused as claimed.

 

Just a few questions:

 

Did your report to the insurer state that the circumstances (i.e, what you said about how the scratches were caused) contain this information? It may have been your initial notification or provided later.

 

Did you mention the damage to the insurer BEFORE it was examined?

 

Did you receive a written summary of the claim details? If so, did it include the incident details or damage in question? Did you sign and return it?

 

What is the engineer's/ inspector's reasoning for saying the damage was not caused by the incident?

 

Is there any damage on the same side as the scratches and in the same vicinity? Is there any rust on the scratches?

 

I cant help but wonder whether some little, yes I'm gonna say it, hitler (ok, I'll say jobsworth then) has got hold of this and not quite appreciated the spirit of things.

 

If you can, let us know the answers to the above and hopefully we shall see what we can argue.

[james22008]

Hi Gyzmo, many thanks for your help.

 

To answer your questions.

 

Did your report to the insurer state that the circumstances (i.e, what you said about how the scratches were caused) contain this information? It may have been your initial notification or provided later.

 

We had not seen that side of the car as it was bunched up tight against hedges, trees etc. When the report came to us (by phone) we refuted it, explained the situation of where the car ended up and it was looked at again.

 

They came back 5 minuets later saying they won't change their minds and that the decision is final.

 

Did you mention the damage to the insurer BEFORE it was examined?

 

No. As it was impossible to access this side of the car at the accident scene we hadn't seen the damage (although assumed there was some).

 

Did you receive a written summary of the claim details? If so, did it include the incident details or damage in question? Did you sign and return it?

 

No. We have requested several times their engineers report, both from the insurer and from the ombudsman who also has a copy. We were told this isn't possible from both parties. The ombudsman said they won't send it becasue they want to protect their prices from competitors (costs to fix damage)

 

We are also quite sure they did not obtain a police report of the accident. (We have requested this ourselves so we can send it)

 

What is the engineer's/ inspector's reasoning for saying the damage was not caused by the incident?

 

A great question and one I have asked so many times. The insurers say it's 'obviously old damage, rusted etc' and the ombudsman said it was becasue the scratches go in different directions.

 

However, this is the ombudsman's finding from looking at a single photo. We have since shown that this 'upwards scratch' is actually a splattering of mud (this is how silly it's getting - it's as if the ombudsman is doing everything to help the insurer). Our independent report does not mention this as a scratch either - so it refutes that claim.

 

Is there any damage on the same side as the scratches and in the same vicinity? Is there any rust on the scratches?

 

As far as I am aware, no. There are light nicks, scratches etc but these are consistent with age and are small in nature. Our independent report said it's basically 2 long scratches. One high up from door to door, the other low down (I haven't seen a photo of this one).

 

The damage wasn't rusty (impossible as it wasn't there before). And our engineers report goes so far as to say the age is similar to the impact damage.

 

Regarding your little hitler claim - When we were trying to track down the date that this engineer made his report, we called the salvage yard and he checked on the computer. He recognised the name of the engineer and said he was well known as a (rude word here) - which kind of worries us, so your guess seems pretty full on.

 

The thing is honestly the ombudsman can't be of any less help - it's as if anything we claim isn't worthy of beng taken onboard.

 

Of all the people arguing, I was there and went into teh car to get belongings. If they could see where it lay there is no way this would be questioned.

 

That's the frustrating thing.

[james22008]

IF it helps also - below is basically the full story.

 

Third party driver hits out car (accepts liability too). Impacts drivers side, forces car off road.

 

Insurance agree with blame, and declare our car a total-loss. Valued at £3500, with £2500 to be sent to us, £1000 held back for 'pre-existing damage' to passenger side.

 

Refuted this damage, explained the accident details on the phone (that the car ended up off-road beside trees / hedges) Insurers go back to talk to engineer and relay 'new' information.

 

Same day - get word from the engineer that offer still stands and decision is final - claim the damage can't possibly have happened during or after the accident.

 

Contact FOS and wait a few months.

 

FOS call by phone saying they side with insurers becasue we have submitted no proof that the car was undamaged.

 

Asked for proof that it wasn't damaged, told that they need no proof becasue they are 'experts with years of experience'

 

Gave diagrams to FOS showing impact of cars in detail.

 

FOS say the side of the car can't have been damaged becasue it went in head-first so again they side with insurers.

 

Pointed out to FOS that we never said that - and what's more, the photo we sent them of the car clearly shows the it didn't go in head first, nor did it end up head-first. (first worrying mistake by FOS)

 

FOS then claim they side with insurers becasue a major scratch goes upwards, and the other major scratches go sideways. Have 'photo proof'.

 

We point out that we hadn't notcied, but will go back and check.

 

Upward scratch is actually mud

 

We get independent anginners report, they say damage is significant, of the same age, and must have been caused by something pointing out, thin and sharp (a classic twig to me) but agree damage won't have been casued by impact with trees and must have happened during recovery, or storage.

 

And that's where we are.

[gyzmo]

Right there are a couple of things here.

 

Firstly, the FOS. Unfortunately, their decision is final so you cannot appeal to another ombudsman (there isnt one) or ask for a rethink. However, their decision is binding only on the insurer but NOT BINDING ON YOU. This means that you can, if you must, take the case to court. I''' return to this.

 

Secondly is the damage. I can honestly say that everything you have posted about what the insurer / garage / FOS have said is, frankly, preposterous. How on earth can they offer their expertise as proof? Rubbish. As for commericial competitin, they can, and do, simply remove prices and sensetive info, thereby leaving the remaining information to be examined.

 

In any case, one consideration remains: Even if the damage is pre-existing, it must be asked whether it affects the ability to repair the new damage or the cost of meeting the claim. If it does not, then there is no reason for it to be discounted (for example, if a door is badly damaged and needs to be replaced, it is not acceptable to say they are not doing it because of and old scratch. The door would have to come off anyway and the scratch is immaterial).

 

It seems to me that your main option now is to go to the small claims court, for which you will probably be best off with a solicitor. You seem to have a good case for doing so, and the constant refusals and lack of co-operation of the insurer / fos will stand in your favour.

 

Get all correspondence ready and make a diary of all communications in the matter. Include dates, times, names etc. In future, do not communicate by phone but in writing and insist replies are also in writing. If, after collating your data you find missing information, write to the insurer to request written confirmation (for exampe, "please confirm that whether or not you are going to release the engineers report to me along with a reason why").

 

All this will be used as evidence. I think you have a good case, but alas am not experienced to this point. Hopefully someone else wil come along to provide more help, or alternatively you will get some good representation.

 

Good luck and do keep us updated.