Category Archives: Legal

Will a legal dispute hold up my repair/rebuild?

A question came to us this week asking why a contractor would stop work on the insurer’s advice if the homeowner started legal proceedings. We put the question out there and Samson from ICNZ has given us the following responses. We are awaiting a response from EQC.

We suggest if you have raw sewerage issues and your insurer or PMO is refusing to do the work, get the manager on the phone and ask what their decision was based on and what alternatives there may be to deal with the issue.

Are there legal or policy constraints on an insurance company that prevent them from being able to do any works or is it an in-house decision not to do so?

If there is legal action taking place, it can preclude an insurer from doing further works – particularly if these works are the subject of the dispute. However there are other ways that an insurer can meet its minimum obligation, such as paying indemnity value or cost of repairs to the customer even if they are disputed, but this will vary from insurer to insurer.

Does this also apply to works including lifeline work – power, sanitation, water? If people have raw sewerage issues is an insurer obligated to address the issue regardless of the claim being disputed through court action?

It could apply to those works (if that was the in-house decision of that insurer).  An insurer is not obligated to carry out temporary emergency works, but may choose to do so.  In some cases, an insurer may be willing to carrying out emergency repairs for customers that are in dispute.  If the insurer can’t carry out the work, it is may be due to the customer not wanting the proposed repair (i.e. the insurer intends to carry out a permanent repair, rather than temporary repair – customer doesn’t want this as they believe the house is a rebuild).

Do all insurers stop work or is it an insurer-by-insurer decision?

This is a matter that is considered on an insurer by insurer basis.

Homeowner EQ Insurance Issues – A Legal Perspective by Dr Duncan Webb

Canterbury Earthquake – Three Years On – A Legal Perspective

Claimants4Claimants
Tuesday, 25 March 2014 from 6:00 PM to 8:00 PM

To register for this event click here

As insurance claimants we should not have to know all of the in’s and out’s of how to navigate the complex insurance situation we found ourselves in three years ago. Rightly we expected our insurers to honour our policy entitlements, unfortunately for many that does not appear to be the case.

Like it or not we all need to learn as much as we can to enable us to resolve our individual claims.

On 11 February 2014 Dr Duncan Webb volunteered some time and expertise to give a quick overview around some of the issues EQ Homeowers are facing from a legal perspective. The quick presentation was informative, concise, clear and even a little bit entertaining (no doubt that harks back to Dr Webb’s time as a Professor of Law at University of Canterbury).

Dr Webb was approached and asked if he would extend his presentation to give people experiencing real heartache a chance to learn and ask questions.

In this one or so hour presentation Dr Webb will cover the following:

  • Delay / Loss and Remedy
  • Reinstatement / Standard and Reality
  • The Contractual Crossroad
  • An Insured’s Election
  • Cashing Out
  • Settling Outside of Policy

There will be a Q & A session and Dr Webb will have some of his extended team of lawyers present to answer individual questions after the session.

About Dr Webb

Dr Duncan Webb is an expert in insurance law. As a former professor of law has taught insurance at Canterbury and Auckland Universities, and written widely in the area. He is well known as a vocal advocate for home and business owners who are having difficulties with their insurers and is frequently asked to present to community groups and write on the topic. He also contributes a question and answer column the Christchurch Press on earthquake issues.

He is now a partner at prominent Christchurch law firm Lane Neave where he leads a team of lawyers specialising in insurance and litigation. His team at Lane Neave were voted New Zealand’s best insurance lawyers at the 2013 New Zealand Law Awards.

NOTE: Every person’s policy and insurance company may differ that attends so Dr Webb will keep the content generic. Dr Webb is not providing legal advice in this presentation, he is giving opinion only. It is highly recommend you seek your own counsel and complete your own research.

EQC Group Action – Is this for you?

The following message is on behalf of the EQC Group Action Group.

The Anthony Harper group action to get a declaratory judgement on EQC standards now has pledges of $142,000 behind it but $240,000 is needed to get to the case get off the ground. It is vital that we back this, the opportunity will not come again. If you are under cap and have EQC issues this is a chance to help yourself and to help others.

The aim is to keep the cost under $2000 per household so 120 households are required. Through additional fundraising it is hoped that the cost per household can be reduced further.

The proposed proceeding involves seeking a declaratory judgment from the Court which would confirm the standard of repair that EQC is required to meet. This impacts both on repairs undertaken by Fletcher EQR on behalf of EQC as well as the amount payable by EQC in the event it elects to settle claims in cash.

What are EQC’s obligations under the Earthquake Commission Act?

The standard of repair provided for in the Act requires EQC to replace or reinstate the building to a condition substantially the same as when it was new, modified as necessary to comply with any applicable laws. The costs in doing so must be reasonably incurred.

The Act also contemplates circumstances that do not permit exact or complete reinstatement. This might arise, for example, where building materials or methods have evolved, or where products are no longer available, or no longer comply with current building standards. In such circumstances the Act states that EQC is only bound to replace or reinstate as circumstances permit and in a reasonably sufficient manner.

What is EQC’s approach?

EQC appear to be relying on the “reasonably sufficient” standard in all cases, not just in those where circumstances do not permit exact or complete reinstatement. The aim is to establish whether EQC’s approach is wrong and get a full entitlement for those that have joined the group.

If any of the following apply to you, email eqcgroupaction@gmail.com to get a confidential call from a group volunteer to get more information or contact Anthony Harper on 379 0920 or groupaction@ah.co.nz to register interest and get a FAQ sheet.

  • The EQC scope has missed significant earthquake damage
  • Earthquake damage has been labeled historic
  • You are being made to pay for something in order to get a repair (eg re wiring)
  • You are being refused a repair and required to take a cash settlement do to some sort of noncompliance issue
  • You are being offered a foundation repair that involves jack and pack or glue
  • You are being offered a foundation repair without a geotech or engineering assessment to ensure its suitability
  • You are getting structural repairs but are not being offered a consent.
  • You have had any of the above done and want it done right and want code compliance for your house.

Land Use Recovery Plan Approved

This post has been passed to us by Resource Management Law Specialists Adderley Head. To see the original post please click: http://www.adderleyhead.co.nz/updates/2013/december/247.

The highly anticipated Land Use Recovery Plan (LURP) has been approved by Gerry Brownlee, the Minister for Earthquake Recovery and took effect from 6 December 2013. It shapes the future urban development of Greater Christchurch and will lead to significant changes on the built environment of our communities.

The LURP contains 50 actions to be undertaken by central government, local councils and other groups. Some of these actions put planning provisions in place which have immediate effect, whilst other actions direct future changes to planning documents, such as the City Plan review to be completed by April 2016. Other actions are not directions but agreements between strategic partners and other agencies such as New Zealand Transport Agency.

A key purpose of the LURP is to ensure recovery by providing certainty for Christchurch about where future residential and business growth will be located. These areas are identified as priority areas in the LURP and provisions are included to ensure that development occurs in these areas. Recently, the media has reported on the City Council approving changes to the LURP to aid development in intensification areas. These changes include:

  • Creation of an enhanced development mechanism to achieve medium density housing on large sites;
  • Creation of a community housing redevelopment mechanism that allows redevelopment of community and social housing that is already in place;
  • Enabling an existing dwelling to be split into two units; and
  • Enabling two residential units to be built in zones where previously only one unit was allowed.

Now that the LURP has been approved and notified, local councils cannot act inconsistently with it when considering consent applications or changes to planning documents. A copy of the LURP can be located here. We will be providing further comment on specific sections of the LURP and the implications shortly.

Earthquake Related Court Proceedings

The Court has published this spreadsheet, https://docs.google.com/file/d/0B3RNZb3-KtOWMThmVGw5UnplMmM/edit?usp=sharing to assist earthquake litigants and those contemplating litigation. The spreadsheet identifies cases in which issues of general importance have been or will be decided. Its publication should facilitate communication among parties and counsel.

The spreadsheet is based on Court registers and documents filed, principally pleadings. Readers should appreciate that the issues in any given case may evolve. It is important to note that for cases in which a defence has yet to be filed, the issues are those framed by the plaintiff alone. The very brief summary of issues is not intended to be exhaustive. The spreadsheet is current as at 28 March 2013.

Questions for Community Law Canterbury

Responses here

Q. Whose responsibility is it to prove whether or not any damage was pre-existing and do you know if this has been challenged successfully?

Q. Insurers (EQC included) will say they don’t have to re-level a floor or repair a crack that is within the DBH Guidelines tolerance levels but if the floor was made un-level or cracked as a result of the quakes, don’t they have to reinstate it anyway? How do the Guidelines (which are not designed as an assessment guide) provide them with an ‘out’?

Q. If your slab has a crack in it, how can they decide on a repair methodology that essentially leaves you with a glued crack? The immediate damage may be fixed but the fact that the slab was unbroken and is now fixed but potentially weaker in another event does not seem to meet the criteria of reinstating what was there prior to the quakes.
If you would like free legal advice relating to earthquake issues, please contact the Avondale Earthquake Assistance Centre – Avondale Golf Club, 141 Breezes Road, Avondale. Open: 10.00am to 6.30pm. Phone: 0800 RING CERA (0800 7464 2372)

If you would like to speak to someone at Community Law Canterbury, contact them at 35 Riccarton Rd, Christchurch. Main Reception Line – (03) 366 6870. Legal information line – (03) 371 3819 / 0508 CANLAW

SILT

Please take precautionary measures when dealing with silt. The dust can exacerbate respiratory issues and little is known at this stage about how long the bacteria caused from sewerage stays in the silt that has not been exposed to the UV. It is sensible to wear gloves and a mask and take care to wash well after handling silt. Gardeners take care.

INSURERS are waiting

Another piece of advice that relates to all insurers is to go and speak to them. Meeting with the insurer does not mean sitting down to sign off your settlement, it means sitting down to get on the same page and understand the settlement. Agree to the settlement WHEN you are satisfied (this is what is meant by taking your time) and then sign the settlement. It seems to me we are trying to make big decisions without actually understanding what we have been offered and what that means going forward. If you don’t want to sit down with the claims manager, go to the Earthquake Assistance Centre where all the major insurers are and ask them to give some explanation. Many who have done this have walked away with a greater sense of being heard and understood and more able to see what the options really are.

Lawyers meeting

On Thursday we met with Simon Mortlock and four lawyers from Community Law to discuss how we can work together, generate answers and deliver information specific to the zoning options as well as the decision making / insurance process. The meeting was very productive as we quickly agreed on the need to work together and be efficient. The outcomes. The lawyers agreed to putting together a 3 or 4 page brief on what to do when the government red zone details come out. They also agreed to help with the education pack re the insurance / decision making process. Because the details of the government offer are only a couple of weeks away there was also a wish to quickly lock down information. We are wanting homeowners to be well informed and so please consider taking your time to be well informed. If the government were to release the details on the 16th or 17th, how long would it take to work with the lawyers to produce the details, brief their staff and be ready to advise homeowners? At least a few days. More about this next week.