Damage to garden by neighbour's falling tree - Insurer changing position on coverage

[Edinburgh24]

Not sure what to do here.

My neighbour's very large tree fell in high winds a few weeks ago causing substantial damage to my garden - trees and fence. From information in a surveyor's report I would estimate around £20,000 in damages, mainly the costs of replacing mature trees.

I checked my policy and it said that hedges and fences were not covered, but I assumed that they would claim for me against my neighbour's insurance. So I called them.

When I called my insurer they said that damage to hedges and fences was not covered (trees were not mentioned) and they would not raise a claim against my neighbour's insurer so I had to call them myself.

30-60 minutes later my insurer called me back. They said that due to the circumstances they would cover this damage, except for the clean up costs, and claim my excess back from my neighbours. I said I would speak to my neighbour's insurer first before opening a claim. But they opened a claim in their system for "impact": damage.

I could not get my neighbour's insurer on the phone so called my insurer back and said I would make the agreed claim. They arranged for a surveyor to come and see the damage.

The surveyor arrived and asked if it was covered, I said that my insurer had told me multiple times it was and so he wrote a report.

On the basis of what I had been told, I informed my neighbour that my insurer would cover the damages but asked him about the cost of the clean up. I also instructed a company that I planned to use to replace the damaged fence.

The surveyor wouldn't give me the full report of damages which I wanted to see. But they sent me a report including what the time and materials required and said I could get the numbers from the insurance company. The surveyor told me the insurance company had full costs that they could give me but they are now refusing to do so as it is "business sensitive".

When I called the insurance company they said that the damage was not covered by my policy. I said that they have proactively offered to cover the damage and I had agreed to this. They had confirmed this multiple times and I had acted on this information so that we now had a binding verbal contract. They said they were not covering it and I asked to raise a complaint.

They also said that instead they should have offered to cover the clean up costs but not the hedge and fences, so they would cover this. I said that I was not accepting this new offer at this time, although I reserved the right to do so and preferred the previously agreed offer. They simply closed the claim, noting I was not making a claim according to someone I have since spoken to. The claim has now been reopened.

Consistently I have asked them to simply claim from my neigbour's insurer but they refuse to do this. I have now given the damage reports to my neighbour and his insurer will only deal with my insurer who will not claim on my behalf. I have noted to them many times that if they simply make a third party claim then the issue goes away. They say that they will not make a third party claim for something they won't cover themselves.

Just to further complicate things. I could raise a legal claim against my neighbour but would have to argue negligence. Clearly this is an unfriendly thing to do but it may come to that and their insurance might pay out. They have spoken to their insurer who is paying their costs having agreed that the wind speed was over 55mph, so it was an official storm. Thus they have said they do not believe my neighbour is negligent. However, I have checked weather records and I am seeing a wind speed in the 40s, so they seem to be being very generous to my neighbour. I believe that I can argue negligence for various reasons but this will not be clear cut.

So various questions.

1.Having offered to cover this and me agreeing to their offer, do we have a verbal contract or can my insurer reread the policy and decide they are not covering it? I have a complaint in re this.

2.Why would my insurer not just claim against my neighbour's insurer? They exclude hedges and fences from impact claims even though these could well be third party liability. I understand them being excluded from storm damage. My neighbours insurer does not exclude this and would pay out.

3. The surveyor's report has costs to replace a large number of mature trees and a fence. Trees are not excluded from cover. When I pointed this out to my insurer it was met with "oh" Can they argue that my trees were a hedge if their surveyor has written up a report saying that trees need to be replaced.

[PallasAthena]

Who is the insurer?

[echat11]

Send the insurer a Subject Access Request, they have 30 days to provide all the requested information on the account.

The Terms and Conditions of your policy dictate 'your cover', not the 'wind', as it seems to change with every contact.

You shouldn't be talking to your insurer over the phone, everything in writing i.e. emails, letters etc.

[Edinburgh24]

The insurer is Admiral.

I guess the most obvious question is what if they offered cover that’s actually against the T&Cs of the policy. Are they bound by that? They do accept that this is what happened.

[Pezza54]

Buildings insurance covers structures in the garden such as walls, outbuildings, sheds, fences, gates, paving, ponds, swimming pools. Since the hurricane in the late 80s insurance companies have excluded storm damage to fences and gates

Contents insurance covers garden tools, lawnmowers, ornaments, bbqs, plants, ornamental trees etc. Individual items over a stated value should be listed and the estimated values given to the insurance company

The damage to your garden was caused by a neighbour's falling tree, not by storm damage. So your damaged fencing should be covered by your buidings insurance.
Smaller value items in your garden damaged by the tree should be covered by your contents insurance.
Unless you stipulated the higher value mature trees separately on your insurance application form, in my opinion these trees are not covered by insurance

You cannot claim on your neighbour's policy unless you can prove negligence by your neighbour. This won't be easy.

Your insurance company can say their employee made a genuine mistake during their conversation with you. Fortunately the employee did not ask you to obtain a surveyor's report, which could have happened

In your tenth para you stated you asked to raise a complaint. If you haven't already done so you should make this complaint in writing

If you are unhappy with the company's response you can refer your complaint to the FOS

[Edinburgh24]

Some good points there.

As you say I did not expect the policy to cover hedges and fences if they simply fell over in a storm. That’s fair enough.

The problem is that Admiral have added an exclusion for impact damage to hedges and fences caused by falling trees apparently even if they belong to a third party. This seems ridiculous.

The trees individually are not high value. The surveyor’s estimate is £500 a tree plus labour to plant them and remove the stumps of the damaged trees. The reason for the size of the claim is that the tree that fell was extremely large. The crown was approximately 15m wide. Thus over 20 trees were damaged.

I believe that I may have a negligence claim as the tree sat on a raised area held back by a dry stone wall. The dry stone wall is extremely old and has no mortar in it. The tree trunk was within a foot of the wall and the tree leaned in the direction it fell. The tree fell over because the wall gave way underneath it. I did ask the surveyor who Admiral sent to assess the claim and he said that in his opinion the wall was not a proper retaining wall. The neighbour did say that they had the wall inspected a few years ago but I can’t confirm or deny that. I would, however, consider legal action against my neighbour a last resort.

Does anyone know the official source that would be used for windspeed at the time? I have checked online and whilst my neighbour says that his insurers have agreed the wind speed was over 55mph so it was an official "storm" all the sources that I can find show a speed of closer to 45mph. The lower the speed at which the tree fell, the more likely it was due to the poorly maintained wall.

I can see the argument that a genuine mistake was made. But the employee actually went away and read my policy and then called me back to say that I was actually covered in these circumstances. Further they then confirmed this in two subsequent conversations and it was them who arranged for a surveyor to assess the damage that at that point they were agreeing to cover. One might be suspicious that they only changed their mind once they saw the extent of the damage. Further I think the issue may partly be that it is third party damage, so I can see them trying to exclude my own tree falling but not a neighbour's tree. I think this was why the employee believed it was covered.

They have also offered to claim back my excess from my neighbour. It seems strange that they are willing to claim this back from a third party but not other costs they are not covering.

Admiral have said they will come back with a response to the complaint within 5 days so I am waiting for that but I am not hopeful considering the back and forth I have had. I thought I would try to get some advice here in the meantime.

[atticus]

You may claim from your neighbour. If he is insured he will notify his insurer.

[Edinburgh24]

I tried this and his insurer will not accept a claim from me, only from my insurer. My insurer has consistently refused to do this, even though, as I have pointed out, this would clear their liability.

If the situation continues to make a claim from his insurer I believe that would have to lodge a legal negligence claim.

If there is a way to do this without taking legal action then I would be very pleased to hear it.

[Pezza54]

Admiral state in their policy that you are not covered by storm damage to the fence but you are covered for damage caused by falling trees or branches. Are Admiral stating that because the tree fell during a storm your fence is not covered?
Seems strange that you are going to argue that there wasn't a storm and Admiral argue yes there was. Usually it is the other way round

[Edinburgh24]

I have not had a discussion with Admiral as to whether or not there was a storm as they have accepted it is impact damage.

Direct storm damage to hedges and fences is not covered. I can understand this as fences blow over easily.

Impact damage from falling trees and branches is covered, but they have an exclusion for when they damage hedges and fences. However, Admiral originally said they covered this, I believe because it was a third party tree, but have now decided that the exclusion still applies.

We have yet to argue the fact that the surveyor they sent said that the damage was to trees and there is no exclusion for damage to trees.

The reason I may have to argue it was not a storm is that the neighbour’s insurer would only cover this in the event of it being a storm. Otherwise they would have argued that properly maintained trees don’t fall down when winds have not reached the level defined as a storm. If I was to have to make a negligence claim against the third party liability part of their policy I would have to argue it was not a storm. Of course if Admiral just claimed from them theee would be no issue.

[Pezza54]

I have checked my own buildings and contents insurance policy
Loss or damage to fences and gates caused by storm is excluded
Also excluded is "property in the open air" such as plants and trees. Does Admiral have the same clause in their policy?

[Edinburgh24]

I don’t believe so.

[Pezza54]

You should check your policy wording to be sure
Are you able to show Admiral that you allowed for the cost of replacing at least 20 mature trees (actual number if more than 20) in your calculation for the total contents value?

[Edinburgh24]

I didn’t know this.

So yes trees are covered as garden plants.

But these are considered contents much to my surprise.

I would have thought they were covered as buildings/fixtures.

I have unlimited buildings cover but did not think to include trees in my calculations of the value of contents.

[Pezza54]

I too am guilty of not reading insurance policy wording in detail. I have just read I have accepted a voluntary excess in addition to the compulsory excess which wasn't included last year. Nor did I notice "property in the open air" being excluded. Just as well as I didn't include the value of trees and plants in the contents