Claiming against another business small claims coiurt?

[andie_303]

Hi All,

 

Just looking for a bit of advice please.

 

Over 2 months ago the business above my own were having some plumbing work done - unfortunately the plumber disconnected (without knowing) a waste pipe that is in the floor/ceiling space between our units. Due to this waste water flooded into my unit and damaged my stock and carpet.

 

I notified the business immediately of this happening. The owner came down with a very much "we'll sort this out" attitude and asked that I email her a breakdown of the damages - which I did.

 

Since then it's been harder and harder to get anywhere, a week later they informed me that they would be seeking to claim my damages through their insurance and asked that I provide photos and prices for the damages - again I did this.

 

They then told me their insurer would be getting in contact to get receipts etc - I have to date over 2 months later had no contact from their insurer. I have asked for the policy details and I was given a number and details of their broker. when I have contacted the broker I have been informed due to Data Protection they cannot talk to me, they cannot even confirm the policy exists - all they advised was that I write a letter to the other business detailing why I believed them to be liable and what I was claiming - something I had done.

 

Despite a number of emails asking for progress all i get in repsonse is "it's being dealt with by our insurer" I was finally provided with the insurance companies name and telephone number - which is a disconnect. I informed the business owner of this and asked that they have their insurer contact me with what was needed to move this matter on - to date I received no response from the business owner nor any contact from the insurer.

 

Last week got fed up of waiting so sent a LBA detailing again what I was claiming, why and that they had 14 days to sort it otherwise I would take further legal action, as I think over 2 months is an excessive amount of time. I have now received a response basically saying "our insurer is dealing with it so we will not be responding"

 

As I have had no cotnact in over 2 months from their insurers and being told by the broker that they can't talk to me should I now just follow through and begin small claims action?

 

I do believe there is a policy but cannot understand why the insurer is not contacting me - do I have to wait for their insurer to get their act together or am I entitled to pursue small claims?

 

Thanks in advance

[unclebulgaria67]

I think the third parties Insurers are not wanting to get involved with your claim, unless they are forced to. The plumber doing the work upstairs would be the responsible party here and not the business owners as such. I suppose that you could sue the business owners, but they would say that they have not been negligent in any way and are not responsible for the negligence of their plumber. Of course the business owners would pass your claim onto their Insurers and I suspect that they may defend on the basis on not being the liable party for the damage.

 

It would be so much easier claiming on your own Insurance and letting your own Insurers deal with this. Issuing a court claim yourself is easy, but you would have to have the legal knowledge to know how to make your case. Do you have the knowledge of relevant legislation and cases that you would use in your arguments ? If you failed and it was not a small court claim, you could end up paying the other sides costs, which might be expensive, if the employed Solicitors.

 

Suggest that you obtain legal advice, before you take this further. Perhaps you would issue the court claim against the business owners and their plumber ? Your business Insurance may have a legal helpline, where you could discuss this further.

[andie_303]

Thanks Uncle Bulgaria,

 

It would be small claims and I have researched and as the person i.e. the plumber was there on instruction from the business owner I believe the business owner are liable for my loss but then can claim that back from the plumber if he is registered and insured. I cannot claim directly from the plumber as he was effectively the "agent" for the business - if I'm reading things right anyway.

 

I agree it would be easier claiming off my own insurance but I do not want policy increases on renewal - its already hard enough getting resonable small business premiums the last thing I want is that increasing for the next few yers due to something that was not my fault.

 

I do have in writing an admitance of liability by the business owner - it just seems they either have a really rubbish insurer who's communication is non-existant or there is some other problem that they are not willing to disclose to me - i've even started to wonder if the "plumber" was actually a plumber as if not I'm sure their insurer would be invalidating any claim.

 

I just find it strange that the insurer has not contacted me at all - surely they would need to ask for further information from me before upholding or even rejecting a claim.

[unclebulgaria67]

Third party Insurers are obviously considering that if they ignore you, then you might go away. They don't have to respond to you.

 

As you have explained it, then once the 21 days are up from the letter before action, you might as well issue the court claim and it should gain you the payment (eventually !). In your favour, is that you have written admission of liability, which I think would be difficult to argue against.

[andie_303]

I have (I thought) finally got the insurers and the businesses attention with a final LBA. The insurers asked me to send receipts, pictures quotes etc and promised to deal with it speedily (yeah right) after chasing for about a month today I receive an email saying that they believe the carpet could be cleaned and not replaced - the carpet was less than 6 weeks old at the time if the incident and was cleaned on the day it happened but the stain has remained. The musty smell from what I assume is rotting backing is also not getting any better!

 

I also asked for the retail price of the damaged items that have now been discontinued and therefore can't be replaced as that is effectively my loss but they have refused this also saying they are only willing to pay the trade price as they say the trade price is my loss.

 

Typical insurance company BS but my question is if the insurance company will only pay trade could I invoice the business to make up the rest of the loss that the insurers are refusing to consider?

[unclebulgaria67]

Get a carpet report that hopefully will say it needs to be replaced. Allied Carpet use to provide such reports or you may find another company locally who will do this.

 

You will only get the trade price as this indemnifies you for the loss and not any profit you might have made. If the items were more expensive to replace on a trade basis, you should obtain evidence for this. You would never obtain retail values from an Insurance company as that is more than indemnity and you would not obtain more than the indemnity value from a court. Your only way forward is to show evidence that supports a higher replacement cost for the goods than the original trade price you paid.

[andie_303]

Your only way forward is to show evidence that supports a higher replacement cost for the goods than the original trade price you paid.

 

The only thing is that they can't be replaced at all - there really is no like for like out there - what a bummer!

 

I totally get that I can only claim trade price on the items that are still available and can be replaced as obviously I can re buy these in and still make the profit off them - but it's really unfair that as they are no longer available I must take this "loss" because they cannot be replaced.

 

So I can't ask the business to make up the short fall? Sorry I'm so naive when it comes to things like this and just assumed that as I hve effectively lost the product and the profit that I would be able to claim that. Damn those insurance companies - what a one sided [problem] they have running

 

Thanks for your reply

[andie_303]

Your only way forward is to show evidence that supports a higher replacement cost for the goods than the original trade price you paid.

 

Though I do know of a company that creates "samples" that could replace them, though at £300 per sample (to cover the set up costs etc) I'm sure the insurers would have a breakdown!!

[unclebulgaria67]

Commercial Insurance and court decisions are very different to how the FOS would deal with a complaint you made to your own private Home Insurance. Under a Home Insurance the FOS would consider an increased value for an irreplaceable item, by asking the complainant to obtain estimates from specialists who could replace the item if they had to. e.g it could be an item of jewellery that was a one off creation or a piece of pottery that was a one off design. There are jewellery/pottery companies who will quote to make one off pieces.

 

See what you find out about being indemnified for the loss of an unreplaceable item. Evidence of cost if you could have one made and evidence of the original not being available.

 

There are independent loss assessors out there who might be able to help you, but they charge a fairly high one-off fee (£1k +) or a percentage of the claim value. Up to you whether you decide to look into this. If you google them, you will find many.