Neighbour says brick from my chimney damaged her car

[Streetwitch]

My chimney was badly damaged in the gales. I booked a roofer to rebuild it and had scaffolding put up to safeguard the pavement and road from falling debris.

The neighbour said a falling brick damaged her car while she was parked next to the scaffolding. Nobody saw it happen, she doesn't know when it happened, and the only reason she noticed the damage is because another neighbour pointed it out to her.

She won't go to her insurance company because she doesn't want to lose her no claims bonus (she's only been driving for a year though).

The damage looks odd, white and streaky, not like a brick, so I'm wondering whether there is any way of getting advice about whether it's consistent with brick damage?

Does anyone know if I'm liable?

Also, I don't want to be arsey about this - if I've caused the damage, I'll contribute, but I don't want to if it might have been something that had happened previously.

Thanks!

This is a bit like where someone had bumped your car in the car park, if the other driver hasn't left a note or been caught on camera then good luck proving their liability and you just have to claim on your own insurance or otherwise pay to get the damage fixed.

With the OP's case, no-one saw what happened to the neighbour's car and it may have been nothing whatsoever to do with the OP, so good luck to the neighbour in proving liability and she should just claim on her car insurance. Tough shit for her if she doesn't want to do that, it's nothing to do with the OP. Sounds like an absolute chancer that saw that her neighbour was having roof work done and might be a soft touch.

And if there were high winds at the time, bloody anything might have damaged the car.

• Nobody saw it happen
• She doesn't know when it happened
• The only reason she noticed the damage is because another neighbour pointed it out to her.

Then she has no claim.

• I'm sorry to hear your car was damaged.
• Nothing to do with me.
• Bugger off.

This comment is one of the most ignorant I have read on here.

The insurance industry cannot dictate to OP’s neighbour. They have no jurisdiction over her. They are just businesses and can’t stop someone from using the court system as it is supposed to be used.

If the neighbor tries to sue OP the court system will indeed say “this is a civil matter not a criminal matter”. And “You are in the right place as suing is a civil process, it’s exactly what the small claims court is for. File your papers here with your fee and come on in.”

If you think the insurance industry doesn’t choose how these cases (which are common) are handled then there is a bit of naivety there…

there is a solution - there is insurance in place… if the claimant takes the OP to court all she will need to do is to say that it has been raised with her household insurance who have asked the claimant to go through her car insurance - the judge will throw it out… the judge may even consider the claimant to have wasted the court’s time…

of course you can take anyone you like to court over any matter you want simply by filling in the papers but that doesn’t mean that there is a valid case ;)

Yet again this myth about insurance. No, the judge won't throw it out on that basis. Neither the courts nor anyone else will force OP's neighbour to go through her insurance. If OP's neighbour has a claim against OP (which isn't clear) and neither OP nor her insurers settle that claim, the courts will hear the claim and decide.

What was the point of this foolish comment?

OP, your home insurance/building insurance, all good ones cover you for liability for things like this.

I bet you the damage is to the top of the car or the side nearest to the pavement. If that is so, IMO he or she is telling you the truth - so decide and talk to your home insurance lot - its nothing to do with their or your car insurance like some have wrongly said

She will have to report it and then her insurance will contact your insurance. She can’t get around that if she wants a pay out.

I’m sure the insurance companies choose, within limits, how to handle the cases they are involved in. OP’s insurance seems to be choosing not to handle her case at the moment. But there is no mechanism for them to force the neighbour to involve them. That’s not naivety. There’s just no mechanism for them to do it. Your little fantasy that a judge would throw a case out if the Neighbour had refused to go through their insurance is a bit Judge Judy. It’s not how civil courts work in England and Wales.

The small claims court is there to decide liability, whether the action is brought by the neighbour or the neighbour’s insurance company. It’s the same questions the court deals with, they do not care if it goes through insurance before it gets to court or not. Their time isn’t being wasted.

Of course, to win, the neighbour would have to prove their case. But the case is only about OP’s liability. Not about what commercial risk mitigation contracts any party decides to rely on.

In any case, the neighbour may not even be insured for this, it isn’t a legal requirement.

Nope, it's the side furthest from the pavement.
Plus I did talk to my home insurance and they said that because it's 3rd party damage she would have to go through her insurance and they would have to approach them.
I sent her my policy details but she's refused to claim as she would prefer me to pay

Then ignore her Op.

An assessor will very quickly work out what caused the damage/whether it’s new.

It's not your responsibility if she refuses to go through her insurance so stop accepting it. Stand firm.

3 parallel white streaks on the side near the road says passing car or van hitting her car not a brick.

Well thats her problem then isnt it?

Very odd

Does your scaffholding extend to the kerb? If not I can't see how the car was damaged on the middle of the road side and not nearest to the pavement

Your homes insurance, our incs third party liaibility and if someone was walkig up our drive and broke their neck, our isnurance would cover them if they went to sue us. I'd check your ins again

Was there any damage to the top or the far edge of the car, ie the side o the middle of the road

The insurer is wrong that they can only deal with a liability claim broached by another insurer. If neighbour advances a claim to you directly (formal letter of notification or small claim court proceedings) they ought to investigate it and respond, though in the absence of any apparent negligence directly from OP they will probably deny the claim.

The handlers at the insurers are probably used to motor claims being advanced by motor insurers and don't really understand the basis on which the neighbour wants to claim. Unless/until She properly presents a claim setting out her cause of action and evidence there isn't a claim for them to investigate and consider. Her just saying "I want to claim against your insurer because I think a brick fell from your house" isn't enough. A claimant has to particularise the case they wish to advance. The claimant also has the burden of proof.

Also (sorry to be boring but I am a very boring insurance lawyer) it is NOT open to the neighbour to claim directly on OP's insurance policy. Only the policyholder can do that. The neighbour (or her motor insurers) must advance the legal claim in common law negligence to the OP. OP then passes it to her liability insurers as an insurance claim and they will investigate and respond. This is the principle known as subrogation. Or OP can decide not to make an insurance claim and investigate and respond to the claim herself.

The neighbour (or her motor insurers) must advance the legal claim in common law negligence to the OP. OP then passes it to her liability insurers as an insurance claim and they will investigate and respond. This is the principle known as subrogation.

It’s only subrogation if the neighbour’s motor insurers pay out to her first and then seek to recoup their outlay from OP.

If the neighbour claims directly from OP and OP passes it to her insurers then OP’s insurers are indemnifying her for her legal liability to a third party (or cost of defence only if the neighbour’s claim is successfully defended).

My understanding of the subrogation principle is that whilst it often features pursuit of the insurer's outlay it also applies to give control to a liability insurer when defending a claim because the key factor is the transfer of any associated rights and duties from insured to insurer (present in both first party and third party policies).

I might be wrong but I bloody hope not as I've been practising in this area for nearly 23 years 😂. Maybe I should take early retirement.

Sorry OP for the derail.

The burden of proof rests with your neighbour. If it was a falling brick, the liability lies with your contractor, not you. I would suggest you politely advise her of this and pass on your contractor’s details.

No, the claim is defended by the insurer but it remains in the Insured’s name. The insurer will have control of claims language in the policy that requires the Insured to give them full discretion as to which lawyers to appoint, settlement authority and the final say on strategic decisions, but they don’t step directly into the shoes of the Insured (so that’s why the claim when issued names the Insured as defendant).

I have also been practising in this area for a similar length of time, partner in private practice (insurance defence work), but also a long stint in-house for a liability insurer handling claims worldwide.

Have only ever used subrogation terminology to refer to claims where Insurer has already paid out under 1st party policy. But even then the subrogated claim is brought in the name of the Insured (I did a big one a few years ago). I believe that in some civil law countries the rights are assumed directly by the insurers, who then sue in their own name, but not in a common law scenario as far as I know.

Possibly there is some academic use of the term subrogation in a claims control context - am on my non-working day today or would check Merkin- but the industry we’d never refer to a straightforward insured defence of a third party claim as “subrogation”, that would be massively confusing.

@WatchandWaitorNot
A subrogated recovery claim also names the insured as Claimant though, so the principle of transfer of any associated rights and duties is the same or at least similar.

I accept I have confused things by using the term academic sense and I'm sorry for that. I'm a partner at a law firm doing insurance panel defence and recovery claims and I may have become prone to overuse of the term subrogation for both sides of the coin. Thanks for the exchange though. Its good for me to think about things and keep challenging myself.

Apropos of nothing in particular, Colinvaux and Merkin always made me snigger about fanny wigs. I really ought to grow up.

Nice chatting @honeylulu . Everyone sniggers at Merkin in our firm too, I remember a partner when I was NQ explaining it to me (I was very naive 😂).

PS @honeylulu insurance lawyers, boring? How very dare you!

(nah, bang to rights)

Corporate lawyers are more boring though!

My ex neighbours car burnt my car out
( long story) he was a total dick and a bully

but I still had to claim on my insurance

I cursed & vodooed that asshole for years and he eventually had a heart attack and died on his drive 😂

So, nobody saw this brick fall, there is no trace of a fallen brick, and the damage doesn't look like brick damage. Nobody knows when it happened either...... Doesn't sound much to go on.

Are the scratches going downwards?