Definition of malicious damage

Errata

HTH - please ignore if it doesn't. The tenants mental state was mentioned by the insurers. Unless a mental health assessment was carried out by a qualified professional immediately after the event it seems to me the mental state is not an issue, and an accurate one could not be carried out retrospectively.

peredur_2

Errata wrote: »

HTH - please ignore if it doesn't. The tenants mental state was mentioned by the insurers. Unless a mental health assessment was carried out by a qualified professional immediately after the event it seems to me the mental state is not an issue, and an accurate one could not be carried out retrospectively.

Zurich are going after malicious damage and that's it. They are not bothered why it happened. I suppose that we could argue the case that if the arsonist was not thinking cogently when he did it then it was not malicious. Our argument (so my solicitor tells me) is that the Fire peril does not include anything about excluding malicious damage. We shall see what happens.

Norfolk_Jim

Surely unless the Fire Peril section specifically refers to section 3 then its covered. Unless it was mentioned in the exclusions then I'd expect it to be covered.

therightclaim

I am an assessor and currently dealing with a claim for a landlord whose property has been turned into a cannabis factory. Insurers have attempted to avoid liability on the grounds that the damage caused by the perpetrators would not be regarded as malicious as there was no intent to harm the landlord. In essence the definition of malicious requires an understanding of the intention behind the act and whether the perpetrator intended to cause harm.

Fortunately in this case the cover does extend to cover vandalism and the loss will be covered.

The point of my post, and I do agree about the issue of which peril the claim is being presented under (i.e. fire), is that if insurers wish to maintain their position they will need to demonstrate the intention of your tenant to cause harm to the landlord. The suggestion that a 'good' tenant suddenly vents his anger his landlord by starting a fire in a drunken state, is frankly ridiculous.

I hope that this helps in some way.

Kittian_the_Blue

Peredur
Glad to see that things are moving along for you - to be honest a trial date in early March isn't that slow.
Keep the faith, I've no doubt you will have a positive outcome in the end..

peredur_2

I quote a paragraph from one of the many letters flying backwards and forwards and welcome comment.

"It is established case law that in instances such as this where there are concurrent proximate causes of damage (i.e. fire and malicious damage) that where one cause is covered under the policy and the other cause is not then the excepted cause will prevail (Wayne Tank & Pump Co. Ltd v Employers' Liability Assurance Corporation [1974])"

Thanks in advance.

Kittian_the_Blue

Peredur
To be honest Wayne Tank is a well known case, which most of us in the business have seen before (usually in exams!!) but I've not seen it applied in an instance like this - mostly in turns up in construction liability claims, Flamecloud mentioned this case in his earlier post and now it will rely on how the judge views the case. Zurich would firstly have to prove malicious intent on the behalf of the tenant, before the consideration of the wording in relation to a Wayne tank argument. Judges are notoriously hard to call in these sorts of cases and I would be very surprised if Zurich wanted to run a case this weak all the way to trial. If I was the handler at Zurch running this one I would be "bricking myself" - the trial cost is probably four to five times the cost of the claim and the repercussions for the handler of losing a case like this are huge. Personally, I would wait for the exchange of statements and then try to get out of it in a mediation before trial.

peredur_2

I do realise that this is going to show INCREDIBLE naivety on my part, and it is probably to do with my not being able to think particularly rationaly about the whole thing, but if we lose this case then are we going to be liable for all costs? I have not really considered that we might loose, but if we do, what kind of level of cost are we looking at here?

Kittian_the_Blue

Peredur
Have a chat to your solicitor - a lot depends on what costs agreement you have with them. As you get towards trial this will be something that your solicitor will discuss with you anyway.

Treacle1983

hi - i take it you have zurich landlords insurance.

if it is contents only - you will be covered for up to £2500 worth of tenant damage.

if it is conts/buildings or buildings you will be covered up to the total buildings sum insured.

I deal with these policies on a daily basis - quite often the claims department don't realise how much cover these is eg: tell people they're only covered for the £2500 when it is for the full sum insured.

I work through an insurance broker - but the policies should be identical.