malicious damage. buildings insurance

chippychick1

I am insured with ESURE and am having a bit of a battle with them over a claim I have made. I wont bore you with the details but an outline of it is that I have a joint septic tank and soakaway system with next door. New neighbours moved in, put a very large mobile home in their garden (with no planning permission etc) and installed an onion septic tank to serve the caravan. On doing this they installed it in the drainage area to the joint system and dumped all the soil etc on the joint soakaway and damaged the pipes. This of course means that effluent is now running like a stream at the top of my garden etc (environmental health are involved) They have effectively knowingly (they were told by contractors that if they installed onion they would destroy shared system)destroyed the sewage system serving my property. I gave no permission for anything to be done to it.
The only solution is for me to install a separate sewage treatment unit for my property at the cost of around £12000.
This is now in the hands of solicitors etc for a civil claim against them.
as I have insurance with esure and am covered for accidental and malicious damage I have made a claim as the system has been destroyed. They sent out contractors who did a report and confirmed that the neighbours actions had destroyed the system.
Esure then started to argue that they would not pay out as it wasn't accidental damage as the neighbours deliberately tampered with the system, but also that it wasn't malicious damage as they didn't do it deliberately. Common sense tells me that it has to be one or the other!. Esure then asked for it to be reported to the police. I did this, the police have logged it as criminal damage although cant take action as its a civil matter. I gave esure the crime ref number etc. They are now saying that the police have to state to them that it is malicious. So I am in a catch 22 situation, whilst the police are helpful they cant do a full investigation as its a civil matter, but esure wont do anything without proof of malicious damage. I have got statements etc to say the neighbours knowingly caused the damage etc, and 3 different reports saying that their actions have caused it.
Can anyone please advise me on the best thing to do with the insurance company. I am taking them to court for the civil action but this could take months if not years and a new system needs to be installed asap as I am living with effluent polluting everywhere and am under threat of prosecution from Environmental health and adjoin land owners.
My neighbours are totally unapproachable and have a complete stuff you attitude to it all.

InsideInsurance

There are certainly things that fall between accidental and malicious

If a dentist does a bad filling and you get an infection, it isn't accidental damage because the acts were deliberate but at the same time that doesn't mean the dentist went out with the intent of leaving decay behind. These things that fall in between the too typically come under the "poor workmanship" category.

So back to your case.... I know next to nothing about septic tanks and so helping is a little bit difficult. Just because an act is deliberate it doesn't mean that the consequences of that act are also considered deliberate. For example, if I put a heavy object on a shelf that shelf may fall down and break objects under it. The act of putting the object on the shelf is considered deliberate but the fact the shelf fell would most likely be considered accidental.

On Accident or Malicious, I personally would say you have a better chance to argue it was accidental than malicious unless you have something that says the neighbour was definitively told that it WOULD break it if they did what they wanted rather than MAY or COULD etc.

On the Accidental side, the argument would be that whilst they did deliberately put the dirt there the result damage was an unforseen and random result

chippychick1

I do have a statement from a contractor who priced up the work for the neighbours stating that they were told that they would need to install a substantial new soakaway etc to be able to put in the onion septic tank. And that they were informed and fully aware that installing it without one Would destroy the existing system. I also have a copy of the quote which included the need for a new soakaway etc.

rs65

I think you need proper legal advice.

I can't see it being malicious damage without malice being involved.

If they part own it then they are unlikely to be able to claim for AD. I would've thought that your loss for your share was AD as far as you were concerned.

Are the contractors that did the work responsible?

eddddy

Hi chippychick1

I'm not sure why you want to go down the insurance claim route instead of a civil claim against your neighbour. (Although if you have legal expenses cover on your home insurance, you may be able to use that.)

Does your solicitor have experience in Property Damage claims? If not it may be better to find another one who specialises in that area.

In your position, I would get a report from a Chartered Surveyor who specialises in drainage, and who offers an Expert Witness service. Then the solicitor can prepare a claim based on the surveyor's report. And if required, the surveyor can act as an expert witness in court. (Has your solicitor recommended a different approach?)

Obviously, the big question is whether your neighbour has £12k to pay for your replacement drains (and £2k+++ to cover your costs).

chippychick1

I am going down both routes as the civil claim will take a while to go through court and I need the new system asap as the council and adjoining land owners want to prosecute for pollution. The insurance company are aware that I am taking action and want any payments they may make refunded to them if I win the court case. which I don't have a problem with. I have had a surveyor look at the problem and both him and 3 drainage companys all agree that the system has been destroyed due to the work the neighbours have done. I am already £2500 into legal fees despite having legal cover on my insurance. The insurance solicitor isn't interested in anything until I have gathered all the evidence etc myself and he has a water tight case put in his lap. So I have had to instruct a private solicitor to help me gain the evidence and deal with the council and the neighbours. My private solicitor is now trying to get the case transferred solely to her to try and help with some of the costs. She is instructing a barrister this week who is a specialist in property disputes, easements and boundaries etc. So I am waiting to hear what he says. The neighbours have a solicitor but unsurprisingly they are just changing there story all the time and are trying to say that a soakaway never existed and the effluent has been running on the surface since the old soakaway was moved in 2004. (obviously I would have noticed a stream of effluent at the top of my garden for all these years if that was the case!) They don't seem to have mentioned anything to him in regard to the installation of the caravan and onion etc and deny tampering with the system in any way. They are now blaming the previous owners, who I know maintained the system in good working order as we jointly did this, saying they were miss sold the property and it wasn't working when they moved in which is utter rubbish. I am unable to get hold of the previous owners for there evidence etc. Now they are saying I have no rights to use the soakaway (which they deny existed) as its on there property. The soakaway was moved to the current position in 2004 as the previous soakaway which had been in use from 1972 had deteriorated. The tank is on my land, the soakaway is on thiers.
They still expect to have full use of the tank on my land, which I empty and maintain, but don't want me to use the soakaway on thiers. of course this means the system cannot work as the fluid has to drain from the tank, that is how a septic tank system works. If the fluid does not drain, then the tank would have to be emptied approx. every 10 days at a cost of £200-£300 a time which of course is impractical and it would also be in breach of building regs etc as a cess pit has different rules to a septic tank. It seems that just want everything their own way and have destroyed a system that has worked really well for years and expect me to pay out for their actions. If I went round and smashed all their windows I am sure they would expect me to pay for replacements!!