Vehicle crashed into my fence causing total loss - third party Insurance offer indemnity basis

an1179

A vehicle crashed into my boundary fence totally demolishing it.  I got details form the police of vehicle registration, driver name and insurance company, presented two quotations to TP insurance as requested.  I proceeded with instructions to a contractor to clear the debris and dispose of as it was a hazard on the roadside to vehicles and pedestrians. 

The loss adjusters have offered settlement on a indemnity basis deducting 5% from the replacement quotation.  They have in fact deducted 5% from the entire replacement quotation and not just the materials,  so if the claim is settled as they have offered on an indemnity basis I am out of pocket.  I have disputed that I should not be at a disadvantage because of their clients negligence but they will not back down.   Should the indemnity basis be only applied to materials  which would amount to a reduction of £50 or the total bill £75 deduction? 

They have totally ignored the clear up invoice (This may be an oversight). 

My insurance carries a £250 excess which is why I did not pursue that route.

Grumpy_chap

Is it because the TP insurer are assessing an element of betterment?
The old fence has been knocked down, but was not 100% new.  They can only rebuild a new fence.

tacpot12

While costs are usually awarded on either the standard or an indemnity basis and not a mixture, a court can decide to use a mixture if it feels the circumstances warrant it. (See Costs: Assessment on an Indemnity or Standard Basis? - Becket Chambers (becket-chambers.co.uk))
 
If you have legal cover as part of your home insurance, you have access to a legal Helpline that would answer this question and others for free. The provider of the Helpline would also have a duty of care to you that answers on an Internet forum don't have.

an1179

Grumpy_chap said:

Is it because the TP insurer are assessing an element of betterment?
The old fence has been knocked down, but was not 100% new.  They can only rebuild a new fence.

I understand that they want to deduct 5%for the age of the fence as it  is not new but surely they should pay the full cost of labour? 

Grumpy_chap

You may feel "wronged", but if I read your OP correctly, you are being asked to make a contribution of £75.  Depending on the age of the fence, it may be pragmatic to pay that and move on.

tacpot12

£75 seems a small price to pay for an easy life, and a new fence. Of course it is unfair that you have to pay this, but life is often unfair. 

kinger101

an1179 said:

Grumpy_chap said:

Is it because the TP insurer are assessing an element of betterment?
The old fence has been knocked down, but was not 100% new.  They can only rebuild a new fence.

I understand that they want to deduct 5%for the age of the fence as it  is not new but surely they should pay the full cost of labour? 

Why do you understand this?  Did they tell you this was the case?

lisyloo

Whilst it’s not your fault that There has to be a replacement, you are getting a brand new fence. I would have thought £75 should be snapped up.
you could pursue it (check for legal cover), but if your car was written off would you expect a new one?

pelirocco

I am somewhat of an expert on this ,as it has happened to us 4 times !!!
The last one really excelled  ,considering he had to leap a 4 ft ditch and avoid a large tree before us he wiped  the whole back fence demolished a summer house ,missed another tree and knocked down the fence between us and neighbour
The loss adjuster told us it was new for old ,I told  him they had to put us back on the position we were  before and good luck on finding  a 2nd hand fence .It took a bit of persistence but we got the full cost of replacing the items 
Insist they need to put you back to the position you were before the damage 

an1179

Hi Kinger101

This is from the e-mail from the loss-adjusters- 

However, as insurers liability is on an indemnity basis they are entitled to make deductions in respect of betterment and we would be willing to settle your claim at £xxxx which is a deduction of 5%.
pelirocco I have objected to the deduction on the basis that their client was negligent I was not planning to replace a perfectly good and well maintained fence which was oak posts and had plenty of years left in them.  The speed they were travelling at must have been tremendous as they severed a telegraph pole in addition to my fence 174 yards in length

Aretnap

Ouch! However the speed he was doing isn't particularly relevant to the amount you are entitled to. Negligence on his part is a prerequisite for his insurers to be liable in the first place. If he wasn't negligent and the accident was completely unavoidable (for example, if he'd had a heart attack at the wheel) then you would not be entitled to anything from him or his insurers, and it would be down to you to claim on your own insurance, or pay for the repairs yourself.

Having established that he was negligent however, the amount due is based on the value of the property he damaged and the amount of damage that he did to it, not on the degree of negligence. In other words, you don't have extra rights if he was drunk and doing twice the speed limit, as opposed to just having taken his eye off the road for a bit too long.

And the damages due are assessed on an indemnity basis, not a new for old basis. It doesn't matter that you didn' t have any plans to replace the fence. You'd still be better off with a brand new fence than an old one - getting it replaced now has likely saved you the cost of getting it replaced in ten years time or whenever (one way to think about it is that if its age was more than 5% of its expected lifespan then you have not done too badly). The amount that you're asking for is not a lot in the grand scheme of things so if you make enough of a fuss they might well pay up for the sake of an easy life, but if they don't then they are probably in quite a strong position legally.