Greenwoods handles a huge range of dispute resolution and litigation work for the insurance sector. To give a flavour of what we do, here are some examples of recent cases:
Defence of major sports body against large injury claim
We recently advised a major sports body and its insurers in relation to a multi million pound injury claim pursued against a referee. There were complex insurance and liability issues. We successfully negotiated a resolution to which a number of insurers contributed and settlement was achieved at a considerably reduced value, much to the satisfaction of all concerned.
Tummy trouble makes holiday from hell
Greenwoods was instructed on behalf of a large travel company, who were being sued by a holidaymaker who had contracted a particularly virulent form of salmonella whilst on holiday in Greece. The company was on the point of admitting liability, an admission which would have had considerable consequences in respect of a number of other claims about to be made. On instruction, it became clear there was a contractual claim that could be made against the Greek hotel in which the holidaymaker had stayed. After we had pursued the hotel through the courts, they finally agreed to an indemnity and paid the full amount of the holidaymaker’s claim.
Defence of PL insurer in respect of boating accident tetraplegic
Greenwoods were instructed on behalf of a public liability insurer and their insured, a small electrical company. The company arranged a fun day, boating on the River Thames. During the course of the day, the brother of one of the employees (but not an employee himself) dived into the river, apparently to cool off. He had been drinking beforehand but not heavily. Regrettably the boat was in shallow water, he struck his head on the river bed and was rendered tetraplegic. The claim was defended vigorously and the claimant discontinued well before the trial was fixed.
Indirect exposure to asbestos, resulting in mesothelioma
We have recently dealt with several cases involving indirect exposure to asbestos resulting in the claimant suffering from mesothelioma. These range from childhood exposure when coming into contact with a father’s work overalls and equipment to a wife’s exposure as a result of dusting down her husband when he returned from work and doing his laundry. Often such cases are reliant upon evidence from the child or spouse and always require sensitive handling. We are however familiar with tracing other forms of potentially negligent exposure as well as investigating the extent to which the father or husband was likely to have come into contact with asbestos in the first place. We can provide advice as to records and documents which are needed to contest such claims. In the case of the childhood exposure the claim was very expensive because by the time of the diagnosis of the condition the claimant was a highly paid executive and had a dependant family of his own. We often deal with the unusual disease cases which require some applied thought.
Pedestrian infant motor accident
We won a case in 2010 relating to a motor accident involving an infant pedestrian that took place in 2001. Our client, the defendant motorist, knocked down a nine year old boy who was playing with a ball when struck by the car. The infant was not found to be negligent, on account of his age, but neither was our driver. We won the case. Please find a detailed account as follows:
Although the street in which the accident occurred was a side street, it led to a car park to which the defendant was heading and it also gave access to other streets. The road was governed by a thirty mile per jour speed limit but was treated by the claimant and his friends as a “play street”, something of which the defendant was aware.
The proceedings were commenced in time but the judge took into account that by the time the claim came to court it was more than nine years since the accident had occurred and that would inevitably have effected the accuracy of recollection.
The claimant admitted in evidence that he was unaware of the presence of the defendant’s car until the instant before it struck him. The police accident report was no longer available but the judge took into account that whatever explanation the defendant gave to the police at the time, a decision was made not to prosecute him. On the basis of the oral evidence and some available hospital notes the judge concluded that on balance he preferred the defendant’s account that the claimant had crossed from his offside rather than the claimant’s suggestion that he had stepped off the pavement to the defendant’s nearside but had not crossed the road. In effect the claimant’s case was that he was kicking a ball against a wall, stepped back to trap the ball and was struck by the defendant’s car, which had only just turned into the street. The defendant maintained that the claimant was playing on the offside pavement; that he had steered his car well to the nearside; and that as he was approaching the car park entrance he was slowing down and travelling at only ten miles per hour and slowing. The claimant had lost control of the ball and had run across the street to retrieve it but was struck by the car as he stepped back off the pavement.
Having regard to the claimant’s age the judge ruled that the claimant had not been negligent. His actions were reasonable for those of a nine year old. The issue was therefore whether or not the defendant had been negligent and was therefore wholly to blame for the accident.
The judge reminded himself that the relevant test was the duty to take reasonable care and he quoted from Moore v Poyner (1975) RTR 127:
“…would it have been apparent to a reasonable man, armed with common sense and experience of the way pedestrians, particularly children, are likely to behave in circumstances such as were known to the defendant to exist in the present case, that there was a possibility of danger emerging to avoid which he should slow down or sound his horn, or both”.
The judge concluded that the claimant had crossed the road with the ball but appeared to the defendant to be likely to remain on the left hand pavement. It was not negligent for the defendant to fail to sound his horn, or stop: that amounted to a counsel of perfection.
Property & Construction
Water damage to prestigious Docklands apartment block
We successfully defended a claim arising from a water escape that occurred in a prestigious apartment block in Docklands, East London. The escaped water damaged flats on thirteen floors and, because of health & safety concerns in connection with the electricity and fire risks, resulted in the immediate evacuation of all the residents. The claim was defended on the basis that a water surge caused by the inadequate operation of pressure pumps caused the water escape.
A thorough proofing of the residents who inhabited the tower revealed that similar incidents had occurred in other parts of the pipe work within the last year or so, indicating that the most likely cause of the water escape was that the piping system had been defectively installed by the mechanical and electrical contractors, who had not properly checked that all the compression joints were properly tightened on installation or on commissioning. The collection of factual evidence of similar incidents, when combined with the engineering evidence, combined to present a compelling action, which was successfully concluded through mediation.
Shoreditch and Soho fires
We recently acted for clients in respect of claims relating to large fires in London, at Shoreditch and in Soho respectively. We are currently involved in multi-million pound, multi-party litigation at the very forefront of exploring newly defined liabilities for the spread of fire and vicarious liability where hot works on construction sites goes wrong. Such issues are typical but absolutely critical in resolving high profile events like the Soho and Shoreditch fires.
All fired up - major reduction of substantial claim for hay bale fire
An unusual recent claim was for a substantial hay bale fire. A stack of hay bales was built too high, causing it to topple onto the high-loader being used by the insured agricultural contractors. The heat from the exhaust set fire to the toppled load and a resulted in a very substantial claim for heat damage to the surface of the hard-standing on which the bulk hay had been stored. Greenwoods were able to reduce the claim to a nuisance amount by demonstrating the poor original condition of the surface and that there was no overall loss of use.
DIY business interruption claim
Acting on behalf of the insurers in defence of a claim in respect of a fire at a privately owned but very large DIY superstore, we managed to resolve a seriously entrenched business interruption dispute. Lengthy mediation was required to deal with a host of issues as to business trend and policy construction but a favourable result was secured, working closely with the specialist adjusting team also involved.
From the failure of boosted water systems – to the wrong concrete mix!
Whilst our Property & Construction team handles myriad claims arising from the failure of ultra modern engineering devices, we also deal with those arising from the most basic of building errors. For instance, we have been involved with increasing numbers of cases arising from the failure of ever more complex and sophisticated M&E services, such as boosted water systems in very high buildings. In contrast, one of the largest cases we have handled recently centred on the far more prosaic issue of the mix of concrete used for a massive floor.
Classic cars damaged in transit – Greenwoods weighs in.
A number of classic cars in the possession of auctioneers were damaged in road transit to the UK from Europe. The position was acute as the ultimate owners of the cars were high profile individuals and the auctioneers had been obliged to settle at full value with those owners. When proceedings ensued against the carriers we were able to demonstrate the critical application of value by weight limitations – very dramatically reducing the overall exposure. In a sense routine; but demonstrating the importance of complete familiarity with the particular conventions that operate in this area.
Major water damage arising from minor component failure
Cold water systems in buildings are becoming ever more complex. A small failure at a late stage in development can have disastrous consequences. For instance, a compression joint fails on the top storey and the resulting escape of water cascades down the entire building, resulting in many millions of pounds worth of damage. In recent cases we have explored the boundaries of the responsibility of the system designers where such vulnerability is “built in”, involving, for instance, the sensible requirement for containment in well designed service risers and the incorporation of flow arrestors to shut off boosted cold water systems where there is a high level failure.
House fire caused by heater?
Greenwoods dealt with a claim arising out of fire alleged to have started in a heater, manufactured outside the EU but imported and sold to a well-known UK retailer, where it was sold on to a member of the public. A subrogated claim was received direct from the insurers of the member of the public whose property sustained the fire damage. There was a substantial dispute between the experts as to the cause of the fire and whether the produce was “defective”. The extent of the fire damage was also disputed and there were also issues in relation to limitation under the Consumer Protection Act 1987. The value of the claim was less than £100,000 but there were other considerations, including adverse publicity, to be taken into account.
Subsidence recovery in which uprooted tree is ongoing root of problem
We were instructed in respect of a subsidence recovery in excess of £600,000, arising from damage to property, believed to have been caused by the adjoining property owner’s tree. Previous legal suppliers had advised that there were no prospects of recovery, on the basis that ongoing damage to the property had continued and was ongoing three years after the tree itself had been removed, which suggested that the adjoining tree was not the cause of the movement to the property.
On close examination of the technical evidence with our engineering expert, it became clear that the ongoing movement had been caused by the foundation slab beneath the property, which had been weakened and fractured, such that even after the adjoining tree had been removed, the whole property remained vulnerable to ongoing cyclical movement and damage. As such, we demonstrated that the ongoing movement to the property was entirely consistent with the adjoining tree having caused the damage. We thereby achieved a successful recovery for most of the damage sustained.
Successful defence of marina against claim for faulty yacht paint application
We recently defended a marina in relation to the alleged negligent application of anti fouling and anti corrosion paint systems on the hull of the claimant’s steel hulled vessel which was suffering from severe corrosion and pitting. We employed the services of a paint expert and yacht surveyor who described the corrosion as the worse they had seen on a well maintained vessel. After a detailed examination of the vessel, the experts concluded that the most likely cause was that of electrolysis caused by an unknown stray current which was most likely the result of a wind turbine installed by the claimant. With the support of this defence we settled the claim at mediation on behalf of the marina and their insurers for less than 40% of the pleaded claim.
Policy overhaul and updating
Acting on behalf of insurers and insureds, we have recently been engaged in overhauling and updating a whole range of policies as well as various associated agreements, including terms of business and supplier arrangements. The policies range from combined commercial to construction defects and household.
Insurance Fraud – Beware the veneer of respectability
Here are two examples of recent cases in which we acted on behalf of insurer clients in respect of claims that transpired to be fraudulent. In both cases, the insureds concerned seemed affluent, honest and respectable, but were in fact quite the opposite. Both cases coincidentally, and perhaps worryingly, involved pensioners who were also grandparents.
The first case involved the alleged theft of items valued in excess of £1million. The insured resided in an affluent suburb and facts supporting a genuine incident seemed compelling, including evidence of the insured having been assaulted during the incident. The insured’s items had also been recently valued and well documented. Despite all this, the insured was a poor and evasive witness from the outset, in light of the ordeal supposedly suffered. Evidence of financial pressure came to light as well as a serious discrepancy involving the setting of an alarm on the night in question. The insured employed both an assessor and a solicitor to pursue the claim, and proceedings were threatened at a very early stage. Greenwoods were instructed to assist the client to meet this aggressive approach and to require the insured to deal with a number of outstanding discrepancies. Not least was the fact that until our client’s policy, which was of two years’ duration, the insured only had contents insurance in the sum of £50,000. The investigation was still ongoing when some of the “stolen” items were discovered in a friend’s house being stored at the insured’s request. The insured was charged with attempting to defraud our client and subsequently convicted. The client’s robust but measured response to potential adverse publicity was commendable.
The second case involved the alleged theft of the insured’s items, valued in the region of £200,000, from a cruise ship. Whilst the circumstances of the subject claim were of themselves the subject of ongoing investigation, the special investigator saw fit, at the same time, to review the insured’s claims history with our client. On the face of it, the insured were loyal customers of 10 years. However, their previous claims history was extremely poor, including another theft whilst on a cruise. The astute investigator identified that the insured still had in their possession a watch, which they had claimed to have lost during the first cruise. By the time we were instructed, the insured had already instructed solicitors to press their claim. We assisted insurers to confront the insured, the eventual outcome being that the insured abandoned the outstanding claim and repaid £20,000 in respect of the previous fraud.
A recent BBC documentary reported that never since the industrial revolution had the UK seen so much wealth concentrated in the hands of so few. This must now be tempered by the fact that much of this apparent wealth has been acquired by borrowing on an unprecedented scale. With the “credit crunch” and the ongoing recession, insurers should be more vigilant than ever of the desperate means by which insureds may be forced to maintain their “cash flow”.
Commercial & Financial Risks
Successful defence of leading insurance broker
We recently defended a leading broker against claims brought by an overseas insurer and producing broker in relation to the allegedly negligent placement of insurances into the London market for a large South American corporate. Detailed consideration of the underlying insurance programme, coupled with the use of expert evidence from a renowned broking expert, enabled the $12m claim to be settled at mediation – with the client paying less than 20% of the claim’s total value.
High profile baby products claim
In a high profile action involving baby products, we are advising the manufacturer and its insurers on the defence strategy for over 100 claims. This has involved a swift assessment of the evidence for the Board of Directors, co-ordinating the response to the regulatory authorities and managing the press interest, to ensure maximum brand protection and minimum brand disruption.
Fleet vehicles diverted to retail? Greenwoods holds a firm course.
We are an insurance firm but our work takes us very squarely into the world of true commercial litigation. This was exemplified recently by a case turning on the alleged diversion of motor vehicles intended for fleet distribution into the direct retail sector. Multi-party litigation ensued between all of those in the supply chain from the foreign manufacturer through all involved in the UK distribution chain.
Murky matters on injury case – and truth revealed
A claimant sought damages for an injury caused in a motor accident. The Judge found that the case “got about as murky as a case can get and (that) untruths had been told”. Greenwoods obtained a confession from the insured, who admitted that the accident happened when he had no insurance and that his brother had persuaded him to perpetrate insurance fraud. The Judge dismissed the claim, ordered indemnity costs and Greenwoods Counter Fraud Group succeeded with an application for show cause against the Claimant’s solicitors.
How to stop ‘slip’ fraudsters slipping through
A major self-insured fuel retailer was concerned that it was being targeted by people claiming fraudulently to have slipped on their forecourts. Greenwoods helped by providing the company with a comprehensive checklist of fifteen potential red-flag indicators to cascade to their claims handlers.
Successful challenge of credit hire claim
A claimant sought damages for personal injury, vehicle damage and credit hire in excess of £65,000. Acting on behalf of the insurer, we were able to draw on our experience of large technical hire cases to challenge the enforceability of the hire agreement. Our challenge was successful and ultimately led to the claimant discontinuing his entire claim. A large reserve saving was made for the client and costs were recovered in full.
Health & Safety
Emergency response to fatal accident
Following a fatal accident on a construction site in London, we were instructed to attend the scene immediately. We provided support to senior managers, co-ordinated a response to the Health & Safety Executive and their requests for interviews, preserved the evidence and ensured legal privilege. As a result there was minimum disruption to the business, an early assessment of the evidence and a clear strategy was developed.
Challenge to Enforcement Notice helps avoid prosecution
During the course of a fatal accident investigation, the Environmental Health Office served an Improvement Notice on our client. This had potential to lay the foundation for a subsequent prosecution pursuant to Section 3 of the Health & Safety At Work Act. Although operationally the improvement notice did not present too much difficulty, we advised that it should be challenged in order to avoid a subsequent prosecution. As a result of the challenge, at the conclusion of the investigation no prosecution was bought.
High profile Coroner’s Inquest involving national security issues
We are presently advising on a very high profile inquest involving issues of national security. It has generated significant press interest. We have managed the process from start to finish advising on press releases, responses to the regulatory authorities and managing the evidence to ensure the client is best placed to deal with any subsequent investigation.