Direct Line - Holiday Injury Claim

[notlam]

I haven't contacted the FOS yet because I was waiting to get it in writing from Direct Line.

 

Now I have this response I will get in touch with the FOS.

 

It seems to me that this section of the policy is totally incomprehensible and it would not be reasonable for any lay-person to understand it when taking out the policy.

 

It was written to mislead; on the one hand giving me, the policy-holder, the impression that I would be covered for this kind of event (an unpaid award of damages, after a successful court hearing) while on the other, leaving Direct Line an easy "get-out" by relating the incident leading up to the original claim to any profession, business or employment.

 

Surely almost any incident/claim could be related in some way to any of the following, as stated in the Direct Line policy:

 

But not liability

i) for death of or bodily injury to any member of your family or domestic staff.

ii) for damage to property belonging to or in the custody or control of you, your family or domestic staff.

iii) arising from:

1) ownership of any land or building.

2) occupation of any land or building other than your home.

3) any profession, business or employment.

4) an agreement unless that liability would have existed otherwise.

5) the ownership possession or use of any;

a) motor vehicle other than motorised gardening equipment.

b) caravan while being towed.

c) watercraft, hovercraft or aircraft other than hand propelled or models.

d) the transmission of any communicable disease.

[notlam]

Sent my complaint form to FOS and got reply back quickly saying it has sent details of my complaint to Direct Line and that they have to respond to the complaint within 8 weeks.

 

Still seems daft to me that despite having a) Travel Insurance, b) Home Insurance (with unpaid court damages cover included) and c) Family Legal Protection Insurance all with Direct Line that I still have to go through this malarky to get my money, assuming I will eventually be successful with all this 4 years after the event.

[notlam]

Received a letter from Direct Line today, as follows:

 

Dear Mr. xxxx

 

I write with reference to your recent letter of complaint via the Financial Ombudsman Service. A copy of your complaint form has been forwarded to me, by our National Customer Services Manager, Ray Harper.

 

Having noted the content of your letter I have fully reviewed our file of papers in conjunction with that of our legal expense solicitors Coleman's CTTS solicitors, who were previously representing you in your action against the defendants, Premier Villas Ltd.

 

Following your letter to us on the 13th august 2006, we wrote to Coleman's CTTS solicitors to establish the precise details of the case, and on what basis they had made a decision to abandon their pursuit of the defendants.

Following receipt of their correspondence it was noted that you were awarded damages totalling £7,759.97 and £8,330.88 in respect of legal costs in Horsham County Court on the 2nd February 2005. However I understand from Coleman's CTTS, that the defendant company had gone into voluntary liquidation on the 17th March 2005. Following a meeting of members and creditors it was concluded that there were insufficient funds to allow a dividend to be paid to any class of creditor. As such our legal expense solicitor's Coleman's CTTS were unable to pursue your award for damages and subsequently their costs for pursuing the action on your behalf.

 

Your claim for the unsatisfied judgement was given consideration under the terms of your Direct Line Home Insurance policy, specifically under the heading of Section G, Occupiers and Personal Liabilities.

 

Specific consideration was given under section (G4) Liability of others in which the policy states that:-

 

We will pay the amount of any outstanding and irrecoverable award of damages and costs obtained after a defended hearing made in a court in the United Kingdom if such an award has not been paid to you within three months of the date of the award.

 

We will only make payment if paragraph G1 of this section would have insured you, had the award been made against you or any of your family.

 

Section G1 of the policy states that:-

 

We will pay all sums for which you or any member of your family become legally liable as occupiers of your home or in any other personal capacity for accidental:

 

a) death of or bodily injury to any person

b) loss of or damage to material property occurring during the period of insurance shown in the schedule.

 

There are however a number of exclusions that are listed under this section. The specific exclusion that will apply in this particular case is:

 

But not liability:-

 

iii) arising from:

 

3) any profession, business or employment.

The defendants Premier Villas Ltd were clearly operating a business in which they provided rented accomodation to you. Your policy with Direct Line Insurance would not be able to consider the judgement debt under section G4, as the requirements of section G1 of the Direct Line Insurance policy would not have Insured you in the event of any claim being pursued against you or any member of your family.

 

It is for this reason that we will not be able to provide any financial assistance on this occasion.

 

I appreciate that you may be disappointed with this decision, but I trust that I have fully explained the reasoning behind it. In accordance with our complaints procedure, I can confirm that this letter represents our final response. If you remain unsatisfied you may contact the Financial Ombudsman Service (FOS) and a leaflet detailing their activities is enclosed. Any referral to the FOS should be made within 6 months of the date of this letter.

 

Yours sincerely,

 

XXXXX XXXXXX

Team Leader

Technical Claims Services-Home & Commercial Property.

 

Is that a "no" then

 

Still baffles me that even having Travel Insurance, Medical Insurance, Family Legal Protection and Liability of Others Insurance, all with Direct Line I am still not covered.

[notlam]

Had a final answer from DL refusing to pay out the unpaid court award. So it looks like I'll have to test this in court.

 

The full amount I was awarded was £7,759.97 but as I am not sure of the outcome and I cant afford to pay DL's costs if I lose. So I suppose I should limit my claim to £5,000 to stay within the Small Claims rules.

 

Am I allowed to do that?

[barracad]

As this claim is for personal injury, anything over £1k would fall out of the small claims remit, so it wouldn't offer you any benefit to restrict the claim to £5k as it would still go fast track.

 

If you are really uncomfortable in dealing with this alone you could approach a reputable solicitor and if they think you have a good chance of success they could take it on as a CFA (Conditional Fee Arrangement).

[notlam]

Thanks Barracad, but would it still be considered as a personal injury claim?

 

My claim now against DL has only arisen because they have refused to pay out for an unpaid damages award, when it states in my policy that they "will pay me any damages award if it remains unpaid for three months".

 

So, is what led to the original claim relevant to this claim? Or am I splitting hairs here?

 

[barracad]

Hmmmm good point. No you aren't claiming against the defendant for PI so it is not a PI claim.

 

In that case - yes, you can restrict your claim to £5k. But I certainly wouldn't want to knock a third of the claim when it is possible to get the full amount.

[notlam]

No that's my dilemma. I dont want to give up a third but then I dont want to end up with a big fat legal bill from DL either.

 

I could try the CFA route as you suggest, or try doing it myself, which I am not averse to.

 

The only thing that worries me is if I lose - how much is that likely to cost me?

 

Is there any way of knowing that before I start?

[barracad]

If you go it alone and lose then the costs will be capped.

 

If you get a solicitor to agree to a CFA then you don't pay costs whether you win or lose, and you still get 100% of the winnings as the solicitor claims their costs from the defendant if you win, or off the CFA insurance if you lose.

[notlam]

CFA sounds like the way to go then.

 

Thanks for your help.

[JonCris]

Not that it matters to the claimant but if they lose his solicitor gets nothing. An insured CFA is to cover any costs award made against the claimant

[notlam]

If you go it alone and lose then the costs will be capped.

 

 

Still having second thoughts and thinking of doing the claim for the full £7.7k myself.

 

Would I be able to find out what the worst case scenario (i.e. I lose) could cost me before I start?

[barracad]

The maximum costs which could be awarded against you if you lose are £500.

[JonCris]

notlam can you say how the holiday villa was booked?

[girlynutnut]

Just a thought - why do you need to litigate against DL? - your claim hasn't been considered by FOS yet. Now that you have your final response from DL, why don't you just refer the matter to FOS for independent assessment as per the last paragraph of DL's letter? (maybe I'm missing something here!)

[notlam]

JonCris - sorry for my late reply - it was booked by phone and paid for by a debit card.

 

Girlynut - I did report this to the FOS about 5 or 6 months ago but all they did was forward my complaint letter to DL. Now that DL have said their final word I will go back to the FOS again as a last resort before action.

[Pat-Uk]

Sorry to did this old post up, but just having a read through some old posts

 

Did you get anywhere with this and another thing did the holiday company have it's own insurance ? if so could you not try to claim tha damages from them, it might be easier..

[notlam]

Hi Pat,

 

I complained about Direct Line to the FOS (Financial Ombudsman Service) back in February this year.

 

Despite several follow-up calls, letters, emails, etc. since, all I've had from them so far is two letters saying they are so busy (all these bank claims!) they haven't even been able to look at it yet.

[girlynutnut]

No surprises there then! I've still got cases at work that have been with FOS for over a year!

 

And you thought the insurers gave bad service!!!!

 

Let us know how you get on. I'd be interested in the outcome of this one.

[notlam]

Finally, after over three months waiting and chasing, I got an answer from the FOS.

Although, as I expected, they back the insurance company........

 

 

Findings

I have carefully considered all the evidence and arguments presented by both parties in dealing with the rejection and have had regard (amongst other things) to the law and good industry practice. On the basis of the evidence provided, it is my view that this complaint should not be upheld.

 

In assessing your complaint I am required to adjudicate fairly and impartially, based on what is fair and reasonable in light of the evidence provided by each party. In a case such as this I am obliged to specifically consider the wording of your policy and determine whether the insurer has discharged its policy liability to you. As the terms and conditions of your insurance policy form the contract between you and the insurer, it is necessary for me to carefully consider the extent of that policy liability and determine whether it has been met, in accordance with the law and good industry practise.

 

It is clear from the policy documents that outstanding and irrevocable awards of damages and costs, not paid within three months of the date of the award obtained, may be paid by the insurer. This obligation however only arises if paragraph G1 of the policy would have insured you had the award been made against you or any member of your family.

 

Under paragraph G1 cover would not be provided for any liability award made against you or any member of your family, ‘arising from……3) any profession, business or employment.’

 

As a result had you been the defendant in similar circumstances cover would not have been provided for any liability award made against you. As paragraph G1 would not have insured you had the award been made against you or any member of your family,

 

I am of the view that the insurer is entitled to rely on the exclusion contained in section G4.

 

I have noted from your complaint form that you state that the exclusion is unclear and unintelligible. Unfortunately I am unable to agree with this assertion. The exclusion in G4 clearly states that it would only apply if section G1 applied had the award been made against you or any member of your family.

 

You have also stated that clause is contrary to the requirement of good faith and a principle of fairness. While I appreciate your concerns I would have to disagree with your assertion. The clause is fair, as it specifies clearly under which circumstances G1 will not apply. The insurer has not left the exclusion open ended. It has defined 6 specific instances where liability will not be covered in section G1 subsection (iii).

 

Unfortunately the circumstances of your claim fall within one of these exclusions.

 

I accept that the exclusion in section G4 is linked to the exclusion in G1 and would require an insured to move from one section to another; however such a requirement on its own would not render the exclusion unfair. The policy is clear as to what circumstances are covered and what is excluded.

 

 

Conclusions

Due to the reasons set out above, I regret that I am unable to recommend that your complaint should be upheld. I am of the view that the insurer has acted reasonably and in a manner consistent with its obligations under the terms of your policy.

[girlynutnut]

Bad luck! At least you know the insurer had to pay FOS £400 to consider your complaint!

[Pliny the Penuriosus]

Remember FSO decisions are frequently ignored/ overturned by the courts

[notlam]

I still dont agree with the FOS findings and I want to take this to court:

 

I dont feel the wording of the policy is clear at all and it is completely open to the insurer to interpret in a way that suits them.

 

I also feel, the FOS has interpreted the policy wrongly........

 

Under paragraph G1 cover would not be provided for any liability award made against you or any member of your family, ‘arising from……3) any profession, business or employment.’

 

As a result had you been the defendant in similar circumstances cover would not have been provided for any liability award made against you. As paragraph G1 would not have insured you had the award been made against you or any member of your family,

 

If the situation had been reversed and someone visiting my property had this type of accident, for which I was liable, in what way would that involve any profession, business or employment?

 

Any views on this please?

[xrchris]

They are saying that you are not covered under your Occupiers Liability for any professional, business or employment activities therefore as this is a reverse liability you would not be covered as the third party was clearly a business and operating a commercial premises.

 

Sorry to be negative but that decision makes sense to me.

[notlam]

I appreciate your opinion Chris...

 

... but I still dont see that, if these similar circumstances were reversed, it would have to have necessarily arisen from a business situation. The accident didn't happen because it was on a commercial property. It happened because the private owner of that property, who let it out through a holiday company did not look after the equipment correctly. Therefore if the Holiday Company wont or cant pay then the insurer should go to the private owner, I feel.

 

Also, a similar circumstance could just have easily happened any where, such as at my private property and not on a commercial premises. The business get-out is just a "red herring", in my opinion.

 

The FOS adjudicator and the insurance company are conveniently interpreting "similar circumstances" to only be a business situation, when the accident could just as easily have happened at my house, or on someone else's private property, and therefore it would clearly have nothing to do with any business.

 

It is particularly that part, which I believe is being misconstrued to fit the wording of the insurers policy.

 

Perhaps it looks like I am being obstinate here, but I feel strongly that I am being cheated.