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EQC & Insurance Newsletter #10
It is now over 5 years since the 22 February 2011 earthquake.  Thousands of claims remain unsettled.  Unsettled insurance claims exceed 6000.  Who knows how many EQC building claims remain unsettled and about 5700 EQC repairs need redoing.  The number of unsettled land claims is also unknown. 

The
6 year limitation period to sue will come into play this year for the 4 September 2010 earthquake.  The insurance Council and EQC have made statements about their interpretation of the law.  It would be dangerous to rely on these statements and postpone suing

Sue now.
Here is the link to the spreadsheet of cases in the High Court Earthquake list as at 31 March 2016.
Here is a link to the Radio NZ website story about problems with EQC repairs.  It includes 2 interviews and mentions Grant Shand as being involved getting EQC to pay cap for a homeowner.
Southern Response - Government Review

Here is a link to the report by the Parliament Finance and Expenditure Committee in its annual review of the 2014/15 performance and current operations of Southern Response Earthquake Services Limited.  This is the first review of Southern Response.  The report raises concerns about the ability of Southern Response to settle all claims within the amount allocated by the Government and the payment by Southern Response of bonuses to staff based on their claim settlement record.  Southern Response so far has paid $3.3M to staff as bonuses.  The Committee was concerned about the possibility that policy holders were not receiving their correct entitlement to enable the staff to receive a bonus.  The report also notes that Southern Response has spent about $10M on legal fees and has budgeted a further $4M for this year
.
EQC announces plan to settle drainage claims

The Earthquake Commission (EQC) is rolling out an assessment programme for sewer and stormwater pipes suspected of having earthquake damage, starting March 2016. 

EQC’s General Manager of Customer & Claims, Trish Keith, says it currently has about 2,500 drainage claims,but expects this could increase to about 6,000 with most claims being settled with cash payment.

“EQC’s focus has been getting houses repaired and people back in their homes. But we are now in a position where we can address the issues with drainage,” Mrs Keith says.

“It has been some time since some drains were inspected. To ensure we have the best information about all potentially-affected properties, EQC has decided that all sewer and stormwater drains where owners have lodged a drainage claim which hasn’t been settled yet, will be inspected whether an inspection has already been done or not.

“The commission has contracted some of Canterbury’s largest drainlaying firms, all of which are licensed with the New Zealand Plumbers, Gasfitters and Drainlayers Board, to carry out the work at no cost to homeowners. These contractors are also Certifying Drainlayers, which is the highest qualification available.

“When inspecting the drains, the drainlayers will obtain a CCTV recording, identify the location and nature of any earthquake damage, recommend a repair strategy for any identified earthquake damage and provide an estimated cost of repair to EQC.

“Where earthquake damage is confirmed, EQC will determine a cash settlement on the basis of the repair strategy recommended by the drainlayer. The same process will apply for new claims lodged during 2016.”

Mrs Keith says EQC will provide additional support for customers who have a genuine need for assistance in finding and hiring contractors to carry out their drainage repairs after they have received their cash settlement.

”The Earthquake Commission Act allows EQC to choose to settle claims by cash payments. But

homeowners can have confidence that if further damage is discovered during the repair process they can get in contact with EQC and, if we agree the damage is earthquake-related, an additional payment to cover additional costs may be made,” Mrs Keith says.

For more information on EQC’s approach to drainage claim settlement, visit the EQC drainage claim website page.

Vero Settlement Agreement - VALID

On March 2016 the Court of Appeal in Prattley Enterprises Ltd v Vero Insurance New Zealand Ltd [2016] NZCA 67 dismissed an appeal by an insured against the High Court’s refusal to set aside a settlement agreement on the grounds of mistake.  

It also comments on the inappropriateness of a Risk Worldwide person (George Keys) purporting to give “expert’ evidence when that person had a financial interest in the outcome of the claim.  Prattley claimed that it was mistaken in relation to a settlement agreement it entered into with Vero about damage to Worcester Towers at Cathedral Junction.  

In August 2011 Prattley settled all claims with Vero for $1,050,000.  That was Prattley’s estimate of the building’s pre-earthquake market value.  Prattley insured the building for indemnity value with a sum insured of $1,605,000.  In July 2012 Risk Worldwide became involved and claimed $8.8M gross from Vero.  The Court decided that there was no mistake claim and the settlement agreement was enforceable.  It also decided that the indemnity value of the building was its replacement cost less depreciation.

CERA - Disestablished

The Canterbury Earthquake Recovery Authority (CERA) was established as a government department on 29 March 2011 to lead and coordinate the Government’s response and recovery efforts following the earthquakes of 2010 and 2011 in Canterbury.

CERA was disestablished on 18 April 2016 as the Government transitions from leading the recovery, to establishing long-term, locally-led recovery and regeneration arrangements.

Some of CERA’s functions have wound down, and other responsibilities are now carried out by these central and local government agencies:

  • The Ministry of Health and Canterbury District Health Board have responsibility for continuing to provide support and services via the Community in Mind Strategy and Shared Programme of Action and monitoring and reporting on community wellbeing, including the delivery of the Community Wellbeing Index and Wellbeing Survey (see useful contacts for information on who to contact for immediate wellbeing support).
  • Land Information New Zealand (LINZ) has responsibility for the completing demolitions and land clearances (mainly in the Port Hills) and interim land management in the residential red zones.
  • The Ministry of Business, Innovation and Employment (MBIE) is responsible for supporting the remaining residential rebuild and monitoring the public sector rebuild.
  • Ōtākaro Limited is responsible for key anchor projects and precincts in Christchurch, along with managing the Crown’s property assets in the central city.
  • Regenerate Christchurch is overseeing the long-term development and enhancement of the Central City, residential red zone, New Brighton and other potential regeneration zones.
  • The Greater Christchurch Group in the Department of the Prime Minister and Cabinet is responsible for policy, planning, legal and monitoring support on a range of recovery and regeneration issues across the greater Christchurch region.

For an archive of CERA related documents, please visit cera.dpmc.govt.nz.

EQC Group Action

The EQC Action Group has settled its dispute with EQC.  Here is a link to the website that has the settlement terms.  There is a joint statement that sets out what is agreed.

  1. Insurance under the Act insures the house for replacement value, which includes the cost to reinstate a house to substantially the same condition as when new and the cost of complying with any applicable laws;
  2. EQC’s liability includes the costs to fix undamaged parts where that is affected by remediation of damaged parts;
  3. If  a house has suffered earthquake damage that includes the floor being out of level:
    1. The fact that the floor level is within the MBIE Guidance criteria is not sufficient reason for the insurance under the Act not to cover the relevelling of the floor; and
    2. If the insurance covers the relevelling of the floor, the relevelling required is determined by the Act, not by the MBIE Guidance criteria.
  4. If EQC chooses to make a cash payment rather than replace or reinstate property the payment must be the replacement value of the property and cannot rely on cluase 9(1)(a) in schedule 3 to the Act that provides: (a) the Commission shall not be bound to replace or reinstate exactly or completely, but only as circumstances permit and in a reasonably sufficient manner;

EQC Land Claims

DO NOT FORGET YOUR LAND CLAIMS

As well as covering buildings, EQC also covers damage to residential land.  Homeowners need to progress these claims now.  These claims expire if the homeowner does not sue EQC within 6 years of the land damage.  The primary claim is for the cost to restore/remediate the land.  Do not believe EQC when it tells you that it only needs to pay a difference in value of the land between now and before the earthquakes.

EQCover for land is limited to land that is within the property boundary – and includes:

  • the land under the home and outbuildings (eg, shed or garage)
  • the land within eight metres of the home and outbuildings
  • the land under or supporting the main accessway, from the boundary up to 60 metres from the home (but not the driveway surfacing).

EQCover also provides some cover for:

  • bridges and culverts within the above areas, and
  • some retaining walls that are necessary to support the home, outbuildings or insured land.

EQCover pays the lesser of either:

  • the cost to repair the damaged land, or
  • the value of the damaged land, or the value of 4,000 square metres, or the value of the minimum-sized building site allowed in the area in which you live – whichever is the lower.

Bridges, culverts, and retaining walls that support the home or insured land are covered by EQCover for indemnity value. This means the valuation takes into account their age and state of repair.

Limitation

Here is a link to a Press story about the 6 year limitation period under the Limitation Act and its effect on claims for earthquake damage.  To be safe anyone with an unsettled claim against EQC or their insurance company should sue by 3 September 2016. Once the limitation period expires that is the end

Introducing: Anya Tovey - Solicitor
 
Anya graduated with a BHSc from the University of Auckland in 2009 and an LLB from Victoria University of Wellington in 2012. She was admitted to the bar in September 2014. Prior to joining the team at Grant Shand, Anya worked for the Ministry of Justice within the Special Jurisdictions Unit.
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Grant Shand Barristers & Solicitors
0800 474 263
www.grantshand.co.nz






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