Definition of malicious damage

FlameCloud

MrsMarshall wrote: »

Whenever I have come across a claim where the proximate cause is not 100% clear I would take the decision of the police and follow that route.

So in this case as the police are dealing with it as Arson then it would be registered as a fire claim.

The same process would apply if there was an item missing... If the police decided it was a theft we would deal with as a theft and so on.

I really hope this works out for you, it seems they are being very unfair.

They would not normally be able to class fire damage as malicious damage as it has its own section against the policy cover which has a definate meaning. The two shouldn't cross?!

Good luck!

The police are neither loss adjusters nor civil contract law experts. To rely on them as to the correct peril code is foolish.

peredur_2

FlameCloud wrote: »

I strongly suspect that either the insurers are either relying on an exceptionally technical argument or there is something the OP isn't telling us.

This claim wont be being dealt with by 'claims handlers' though- if barristers are involved and the matter is going to court it will be being dealt with at the very highest levels of the insurer.

Just for reference (and don't worry, I am not sitting here huffing and puffing presunimg that you are trying to slight me you have the facts as I see them and as I believe them to be.

dacouch

Peredur your total claim must now be many mutiples of the original claim thanks to the arguements with Zurich, any ideas what your Barrister expects the final bill to Zurich to be?

FlameCloud

peredur wrote: »

Just for reference (and don't worry, I am not sitting here huffing and puffing presunimg that you are trying to slight me you have the facts as I see them and as I believe them to be.

Don't worry, am not trying to do that! What I am simply saying is that in my experience- years working for insurers and now at a loss adjusting company- insurers will invariably give in long before it gets to this level if they do not think they have a genuine chance of winning the case.

peredur_2

dacouch wrote: »

Peredur your total claim must now be many mutiples of the original claim thanks to the arguements with Zurich, any ideas what your Barrister expects the final bill to Zurich to be?

I have absolutely no idea. We have had to borrow money to put the house back together otherwise we would miss another academic year of rent. Our legal bills will be hovering around £1.5K by now. Our rental income has not happened for 8 months. The mortgage company were not interested in a mortgage holiday like the government suggested was a good idea. For the 6 months we spent arguing with Zurich (when they could be bothered to respond) the rear roof was leaking copious amounts of rain into inside walls with fire damaged plaster so one of the bedrooms is very damp at the moment, such that we feel it to be unlettable for the near future. If the whole thing goes belly up then it will frankly be the tin hat on a sorry affair. It has caused no end of grief for us as a family, especially for my wife who was also going through a very tough full school inspection during this period (any of you who are teachers or are related to teachers knows what pressure and Offstead inspection brings with it.) The arsonist is in jail until next October. He was presented by his brief in court as a man who had many personal demons and that the event was not pre-meditated or directed at anybody or anything in particular, it was purely an unfortunate combination of circumstance and place (our place!). His brief was very forthcoming in offering to weigh in on our behalf with Zurich due to how he had seen the whole case, but my solicitors decided to go with a specialist barrister. I must admit that I have a suspicion that we could argue against the malicious damage thing on it's own without even going to the fire thing - our feeling is that the damage was not malicious - malice requires forthought. The arsonist just got drunk and expressed himself. However I am in no way a specialist so will keep my mouth shut and let our solicitor and Barrister take the lead.

We shall see what happens.

Again a genuine thanks to all for your support.

dacouch

I hope it goes well for you (From the information you have given its a fairly open and shut case).

If it were not for financial / time constraints the Ombudsman would have a field day with this case.

When is the court case?

peredur_2

dacouch wrote: »

I hope it goes well for you (From the information you have given its a fairly open and shut case).

If it were not for financial / time constraints the Ombudsman would have a field day with this case.

When is the court case?

I am guessing that the case will be towards the end of the month. We have yet to be given a date. If the court goes against us is the ombudsman a further option or will it be done and dusted by then? We certainly will not be able to afford appealing but it would be nice to haul Zurich accross as many hot coals as we could possibly find.

FlameCloud

How much is the total claim for? The FOS can only rule on cases up to a total value of £100,000.

At a rough guess the insurer will be relying on a two pronged defence of the claim. The first would be the MD was the proximate cause of the fire, and that this MD set in motion a chain of events etc etc (as per Pawsey v Scottish). This would then mean that the exclusion was in effect.

The second defence could be that they accept that there is two proximate causes in effect (Fire and MD) however as per Wayne Tank v Employers Liability because of the presence of a specific exclusion the insurer would be entitled to avoid the entire claim.

Kittian_the_Blue

The ombudsman can and will rule on cases above £100K, but the decision is not binding on the insurer (however not many ignore the decision) so it would still be an option if the court case fails - only if Peredur's rental income was in excess of £1M would he be unable to refer to the ombudsman.
"This claim wont be being dealt with by 'claims handlers' though- if barristers are involved and the matter is going to court it will be being dealt with at the very highest levels of the insurer." - sad to say Flamecloud that this is unlikely to be the case - Zurich technical experts only kick in above £100K I think (like adjusters), below that level it's likely to still be handled in the investigation unit (usually ex police who have limited technical knowledge). the reputation of the technical guys at Zurich is pretty good - can't imagine that they would run this one - I certainly wouldn't and I've tried to throw out plenty of (fraudulent) Arsons by any means possible!
Peredur - not suggesting by any means that your fire is dubious - the information you have provided clearly shows the the fire was fortuitous to you.

peredur_2

Case management telephone confrence on 22/12/09

Simultaneous exchange of statements of all witnesses by 16/2/10

Listed for trial first available day after 9/3/10

Tedious on a level I did not know existed.