Insurance company recovering damages via client

megadishu

Help advice needed.

My mum has been through the wringer following a several year battle and process to get a property fixed following more than significant tree root damage.

It has been a hell of a process so we were more than relieved to get to the end ... But

Now the insurance company want to claim damages against the council involved but using my mums name. The insurers have written they will cover all costs.

Is this normal and mandatory? My mum is a worrier and this is going to be a process in her name and will put us all back into a horrible ongoing process.

All advice welcome.

hugoshavez

Completely normal.

The insurers can only take action in your mum's name.

This has quite a good description in the introduction:

http://www.cila.co.uk/files/Property/Principles%20and%20Practice.pdf

megadishu

Thank you for the attached. But is it mandatory? I cannot believe after 4 years of hell that we are re-entering a process that is stressful, time consuming. We had to fight all the way through for my mums rights and to get the job done properly.

The stress has been horrendous. I am ill and only just manage to work but am quite severely sick the rest of the time. My mother is mature and not in great health. I sobbed my heart out this morning when I heard this process could happen. I delayed my wedding from this year to next year just because of exhaustion from sorting out my mums house. I do not want us to be involved as it will worry the life out of my mum which in turn lands on my shoulders.

I really cannot cope with this. Please advise.

dacouch

She agreed to it when she took out cover, most of these things do not make it to court as if the council think they will lose they won't waste money on court costs.

It may just involve giving a statement

megadishu

They are already asking for copies of her paperwork, photographs and more details on the claim. I assume this will go on for a year or 2 or 3 ...

I understand that small print will no doubt say she "agreed". They are also asking for her assistance in pursuing her claim, reports on damage, approval of claim forms, assistance in preparing witness statements and possible attendance in court.

It is already snow balling. I do not want her or I involved

megadishu

One clause that worries me - already is ...

"You will be primarily liable for these costs, your insurer will indemnify you in respect of them. In the event that the claim is unsuccessful and you have no insured loss claim, your insurer will indemnify you in respect of any adverse cost arising out of the recovery acts.

We may also recommend to your insurer that the claim be insured under what is known as an after the event insurance policy which provides insurance against opponents costs and disburse nets and our disbursements in the even that the claim is unsuccessful"

The above words and after the event insurance implies that my mother could be liable for costs and must ensure she is covered by further insurance. Is there more small print we need to be aware of and how do we protect my mum.

BertTheRaccoon

Your mum's involvement with this process of recovery will be minimal.

The basic principle that has taken place here is one of "indemnity" she has been indemnified by the insurer (albeit after a drawn out slog by all accounts) and now the insurer, as part of the actual contract of insurance wishes to pursue recovery of their outlay by way of what is called "subrogation" - i.e they stand in the shoes of the person they have indemnified to get their money back.

The process will probably involve her needing to sign some court papers and an agent will probably need to come and take a statement from her. There is a chance she may have to go to a court hearing but 90%+ of civil cases never see the inside of a courtroom.

One thing is is worth you or your mum asking is whether she can sign a form of assignment to see if she can simply assign her rights to the insurance company, so they can just get on with the recovery action in their own name. Ideally you need to speak to someone higher up the chain of command as the general claims monkeys you speak with on the phone know sod all.

By assigning rights, your mum is effectively saying she has no separate claim for losses of damages above and beyond what the insurer has paid out to rectify the problem, so for example if there was to be a claim for stress, loss of amenity or other damages that are known as "general damages" then she needs to be careful before signing away any separate rights of claim she could take herself.

I am not 100% sure on whether assigning her rights would be appropriate or agreed by the insurers, but it may be a way of getting them to just get on and get their money back and leave her alone.

Hope it all works out for you.

megadishu

Thank you it is very helpful indeed. Very much appreciated.

BertTheRaccoon

megadishu wrote: »

One clause that worries me - already is ...

"You will be primarily liable for these costs, your insurer will indemnify you in respect of them. In the event that the claim is unsuccessful and you have no insured loss claim, your insurer will indemnify you in respect of any adverse cost arising out of the recovery acts.

We may also recommend to your insurer that the claim be insured under what is known as an after the event insurance policy which provides insurance against opponents costs and disburse nets and our disbursements in the even that the claim is unsuccessful"

The above words and after the event insurance implies that my mother could be liable for costs and must ensure she is covered by further insurance. Is there more small print we need to be aware of and how do we protect my mum.

This has presumably come from the solicitors they have appointed to recover the costs of the claim from the council?

ATE (After The Event) insurance is a way of making sure there is legal protection insurance in place to take care of any and all contingencies as far as legal costs are concerned.

The premium does not need to be paid by your mum as the premium is usually always deferred and also the premium is often also self insured, so bizzarrely the actual premium of the ATE policy is insured by the ATE policy itself. Meaning no premium to pay if the policy has to be cancelled etc, the other side just get hosed down for the premium when the claim settles and the lawyers seek their costs from the other side.

I would say that an ATE policy would only be needed here if you mum was making a claim for the stress and hassle as part of her own losses/ damages which would run alongside/ with the claim the insurers are wanting to take against the council.

rs65

BertTheRaccoon wrote: »

This has presumably come from the solicitors they have appointed to recover the costs of the claim from the council?

Why is there any mention of ATE in a case like this?

Her insurers have already said they will cover all costs so no need for ATE.

BertTheRaccoon

rs65 wrote: »

Why is there any mention of ATE in a case like this?

Her insurers have already said they will cover all costs so no need for ATE.

I would guess the ATE would cover any costs of the uninsured losses the policyholder wants to recover as the insurers would probably not indemnify all costs associated with the uninsured loss claim, they will only indemnify the costs associated with the subrogated claim.