– Christchurch, Canterbury, New Zealand

Mediation

The weather is turbulent. A nor-wester shreds leaves off trees. Cold southerly rain falls almost horizontally. Another nor-west arch blazes with a red sunset. A large golden moon rises slowly on a clear night and the air is still. A few people are putting up fairy lights in their gardens. At work Christmas carols are sung by a choir by a large festive Christmas tree.

Terry and I have a long weekend and head up to Nelson to see friends we have not seen for a decade. Where has the time gone? They are living in Wakefield, off a long gravel road, next to a river. Most of their land is covenanted, so there is bush all around, and tui bouncing amongst the flax flowers. We have the most amazing weather, and spend a day in Nelson. Terry is taken out for a 10km walk along the boulder bank, and I wander through the Saturday markets and Suter Art Gallery. It is so hot that we brave a quick dip in the river. It is mightily cold!

On the Sunday we drive to Kahurangi National Park and walk up to the Flower Saddle and Mt Arthur Hut. We see dracophyllum with their angular limbs, silver beech festooned with lichen, a rifleman with chicks entering a nest in a small hole in a tree, weka chicks, kakariki, kaka, tomtits and bellbirds. It is a fabulous day.

The builders are back mid January. The weeds have grown over a metre high – it is quite spectacular. The builders spend the first week getting rid of rubbish and weeds. The eaves are completed, almost half of the weatherboards have been replaced, and one quarter of the remaining removed. Our new lounge bay window has been installed.

Opposite our home, two neighbours character homes have been completely demolished, and they have already built the foundation, framed and put the weatherboards and windows in the home and garage. Our progress is twice as slow by comparison.

It is very hot and windy, and it doesn’t get dark until about 10pm. The low cloud cover produces a very strange golden glow. It pours with rain, and a huge double rainbow is intense in colour above us. The front moves through, a broiling mass wave cloud which the sun lights a mandarin orange. It is spectacular. The large yellow moon hangs low in the sky, keeping the night bright. It is difficult to sleep.

Friends who took a cash settlement for their character home, and started building late last year are almost ready to move in. They are having all of the normal problems with cash settlements. Operating costs such as project management fees are not included, so builders project manage themselves. When it gets to “practical completion” owners can move in, but this does not mean that the house is actually finished – it just means liveable. There are small jobs to be done during a 2 month period that is tied to final payments (10%) and then a year for defects to be rectified. Builders can make more money on other projects, so they say they will turn up, but don’t. When you take time off work to be home for a tradesman who doesn’t show, it makes what should be an exciting time very stressful. Still their home looks lovely.

It is Waitangi weekend and very hot. Terry and I drive out to the mouth of Lake Ellesmere, then walk along the Hart Stream to a bird hide. Across the water there are about 30 spoonbills loafing on the banks and on partly submerged trees. Small brown trout cruise the stream. It is very pleasant.

I prepare for our mediation meeting arranged by Breakthrough Services with our Loss Adjuster, Claims Manager and new Claims Manager. It takes a long time. I want to understand what their decision-making process is, and why our home was never a rebuild. A friend says don’t get their backs up. Fair enough, we can be civil. Another friend says I should have a witness with me who can be impartial, as I will be stressed and may not hear everything important. As our meeting is during my lunch break, I can’t think of anyone to invite. I will have to go it alone.

It is very hot, then very cold and wet, then very hot. On Wednesday 15th February, two fires start on the Port Hills, which form the southern backdrop of Christchurch City. Firefighters felt confident they could keep the fire to the more unpopulated part of the southern side, but at midnight, wind changes transformed it into an uncontrollable inferno.

I stood within work mates on the 6th floor of our building watching in horror as the fire descended onto the northern foothills. Helicopters carrying monsoon buckets were tiny specks in the enormous smoke cloud billowing above then and along the entire Port Hills. We could smell the smoke even in the air conditioned filtered air of the office.

The situation continued to spiral out of control with the death of a helicopter pilot who crashed near the summit of the Port Hills. Hundreds of homes were evacuated, streets cordoned off, and schools closed. The newly opened mountain bike park and newly restored Sign of the Kiwi were threatened by the flames. At least eleven homes burned to cinders.

People at work with homes in the Port Hills stayed home, some taking photographs of possessions in case they needed them for an insurance claim. They stored important documents such as passports, birth certificates and insurance policies in locked drawers. The fire raged for four days, affecting about 400 people.

The weekend came with cooler temperatures, the smoke cleared an 1800ha of burned ground, mainly pine forest on private land, was revealed. Cloud lowered, but there was not enough drizzle to penetrate the soil where roots still burned. It was going to take another 3 weeks to extinguish the last hot spot.

It is the sixth anniversary of the Canterbury earthquakes. In the morning I go to mediation. I ask how the decision was made between repair and rebuild. The insurer accepts that they will spend $1.6 million (plus operating costs) repairing a property that is worth half that. Our insurer will not address this, one of the underlying causes of our claim mismanagement. The skill of our current Claims Manager is that she presents the arguments in a tone filled with compassion. The way she frames her response hints that she has worked around internal policy to rectify some of the unfair costs falling to us. She hints at being constrained by policy, but it is never clear if she means internal policy or our insurance policy.

There is some discussion about “inside Policy” which I think is our Insurance Policy, and “outside Policy” which I think means internal Policy. The confusion around how she explains this either shows that their internal management systems are unclear and/or her manager who is sitting next to me actually making the decisions is one of the causes of our mismanaged claim. I get a hunch that he followed policy to the letter and forgot that there are always exceptions to the rule. I think that he needed to come and see our home last year. Making us a cash settlement offer that was realistic – we were offered 40% of our government valuation – would have solved a lot of problems.

Our Claims Manager agrees with us that if our home had been declared a total loss due to earthquake repairs we would not be paying for some betterment and deferred maintenance.

I ask why defective workmanship separate to the discharge of the insurer’s responsibility to restore the home as per the policy, fit for purpose and within reasonable time frames as required by the Fair Insurance Code and Consumers Guarantees Act.

The insurer says that our policy does not provide obligations to an insurer to restore the home but rather insurer’s obligation is to pay for the restoration of the home following damage caused by an insured peril.

While this may be the case with some policies, this does not apply to ours. Our policy puts our insurer in the drivers seat.

She goes on to say that our policy does not extend to cover the liability of contractors for their workmanship. I say that the insurer had indemnity for Builder 1’s defective workmanship due to a poor initial scope. A proper scope would have identified structural damage in the subfloor and ceiling, as well as a leak in the roof which would have easily resulted in our home being a total loss. To remedy, the insurer contracted Builder 2 and took full responsibility for the contract. As the insurer has indemnity for Builder 2’s workmanship they must remedy his poor workmanship.

To remedy, the insurer accepted indemnity for Builder 2 by writing the contract with Builder 3. If the Insurer had no indemnity, they would have no say in our contract with Builder 3. When we tried to change the contract, the Insurer threatened to walk away, re-confirming their indemnity. In our case the Insurer was not simply a funder – they had legal obligations for indemnity.

Of course, our insurer will not discuss this. When you are at an accident scene, you let the evidence do the talking, and never accept liability.

I say prove your position and provide objective evidence that our home was not a rebuild as if we had had good builders. I suggest several ways of providing evidence. The first is to select a number of repaired character homes similar to ours. The second is to look at our costs and separate out defective work and correct work. The third is to look at the 12 homes on TC3 land that are our immediate neighbours, all of which have been rebuilt.

Under the Fair Insurance Code our insurer must provide objective evidence of their decision.

I do not want to create hostility or create a defensive stance. What I wanted to do was to speak softly but carry a big stick. I’m pretty sure that I have shown that I am prepared to step away from mitigation and have the evidence to take them to court.

I say that decisions to repair and rebuild have clouded the best reinstatement solution. The Operations Manager looks very relieved and says emphatically yes, they have learned a lot from procedures since then. This means there will be no insurance managed claims in the future, and we will have to check our re-insurance policy very carefully as to what it actually covers. It will not include project management fees.

I think about my next step. I suspect lawyers will be involved.

Tell your story Report this story

Report this Story as Inappropriate

If you've noticed any inappropriate content in this story or feel that the story contains privacy violations, please fill out the form below.

We'll review your report and remove information that is in violation of our policies.

We'll only use your email address to let you know about the result of your report.