Are you in the business of constructing property? Maybe instead your own property needs to be repaired, renovated or rebuilt? Whatever the scenario, ensuring you have adequate insurance in place to cover the risks allocated under your construction contract is vital.

Construction is booming in Canterbury, both new builds and repairs. Construction contracts allocate risk between owners, contractors, sub-contractors (and earthquake insurers) during construction, and beyond. Do you understand what risks the parties in the construction process, including you, have taken on and is there adequate insurance in place to cover those risks?

This article looks at these issues and answers some of your key questions in respect of them.

1. What kind of risks do I need to be aware of?

For Homeowners/the owner

  • Your existing home/building being damaged by your contractor;
  • Your existing home/building being damaged by sub-contractors;
  • New building work being damaged by your contractor or sub-contractor;
  • New and old building work being damaged by you;
  • New and old building work being damaged by an insurable event (accident, third party, natural disaster);
  • Latent defects in the building work – design flaws, faulty workmanship;
  • Damage to plant, machinery, your own materials and vehicles;
  • Being indirectly liable for other people’s faults

For Contractors

  • The Existing structure being damaged by the negligence of self or sub-contractors
  • The Contract works being damaged by the negligence of self or sub-contractors
  • Existing and contract works being damaged by accident, third parties and natural disasters
  • Consequential loss resulting from damage – delay, cost of rescheduling, need to redo undamaged work to fix damage
  • Continuing liability beyond project completion date for latent defects by self and sub-contractors
  • Damage to or loss of plant, materials, machinery or vehicles owned by the principal, you and sub-contractors
  • Damage to third parties or their property: trespass to land, nuisance, liability for fire, negligence, breach of statutory duty
  • Health and Safety and other statutory obligations (e.g. Consumer Guarantees Act, Fair Trading Act, Building Act and Resource Management Act).
  • Liability to your employees.

2. How do I know what risks I’m actually taking on?

If you have a building contract, this is the first place to start. Have you checked it to see what risks you are responsible for? Even where one of the New Zealand Standard contracts (i.e. NZS 3910) is used, the Standards can vary as to what risks are covered and by who.

If you are unsure of what your risks are, take professional advice on your build contract.

Where there is no building contract or the contract makes no provision for a risk, the basic rule is that the contractor bears the risk in respect of permanent and temporary structures until completion, subject to a couple of exceptions such as damage by the homeowner/principal.

3. Do I have to insure against my risks?

No, not unless your building contract requires you to. You therefore also need to check to see who, if anyone, is responsible for insurance? Again, the New Zealand Standard contracts can vary as to what insurance is to be taken out and by whom.

However, even if the contract does not require you to take out insurance (or there is no build contract), you need to consider whether you can afford to cover your risks without insurance? If the worst case happens – a fire, natural disaster, leaky building – what would it mean for you and for the building project? Likewise, if you are homeowner/principal, consider the same if your contractor does not have adequate insurance.

4. I’m the owner, won’t my home/property insurance policy simply cover me?

No, most home/general property insurance policies do not cover construction risks. If your property is being repaired/altered, make sure you contact your insurer to let them know and to find out what you need to do to ensure the relevant risks are covered off.

5. Is it enough just to take out a general “All risk” insurance policy?

Not necessarily. The key question is whether your specific insurance cover actually covers the risks you have taken on and to what extent?

Does it adequately reflect your contractual obligations, the value of works, plant, materials, equipment etc? Does it cover additional costs, e.g. demolition of damaged structures, removal of debris, site preparation, professional fees, cost inflation etc?

For contractors, you need to focus on the risks you are responsible for and which, if they occur, may make it difficult for you to complete the work (i.e. financially or otherwise).

For the principal/homeowner, you need to focus on ensuring your responsibilities under the build contract are covered, as well as those taken on by the builder which may impact on completion of your build (even if those are to be insured by the builder).

Included within these checks is being aware of what risks are excluded under the build contract. For example, a contractor may limit its liability as to what works it is responsible for, the amount (i.e. a cap on liability), and the time period they are liable for. This means those risks pass to the homeowner/principal. Have you checked that any excluded risks are also covered by your insurance?

Again, if you are unsure, take professional advice. There is no point paying for an insurance policy which will not deliver when you need it to. It is better to know in advance what your policy will and will not cover in the event of a claim, than to find out later.

6. Are there any time limits on how long the policy covers me for?

Yes, Contract Works policies, for example, include a time limit as to when coverage stops. This is often the date of practical completion, use by the owner, Code Compliance or a set date.

Why is this important? Chiefly because there may be a period of time when certain risks are not insured, i.e. if there is a gap between the Contract Works policy ending and a new home insurance policy being taken out by the homeowner. Some insurance companies will not grant a new policy to the homeowner/principal until Code Compliance is obtained, which may be after the Contract works policy expires.

Has the policy also been extended to cover the maintenance period? Delays in completion may mean the policy expires before the work is finalised.

For Contractors who have professional indemnity insurance, have you checked how long your policy will remain in place? If it ends when the building works are complete and/or on the winding up of your business, you may not have cover for the possibility of future/ongoing claims in respect of the work.

7. What about the excess – who pays this in the event of a claim?

If it is you under the Contract, you need to check how much it is so you can factor this into your budget. If there is no contract or it is silent as to the excess, the general rule is that the party who takes out the insurance is responsible for the excess.

8. If a claim is made and my insurer pays out, what happens to the insurance proceeds?

Where your build contract obliges you to insure, there is an implied obligation to use any insurance pay out to fix the insured loss or damage. Some contracts also expressly state this. This again underlines the importance of ensuring any insurance cover is adequate otherwise your own funds may be needed to top up any shortfall to complete the work.

Who the funds are actually paid to depends on a number of things. For example, if the insurance policy is in the names of both the homeowner/principal and contractor, the proceeds can be paid to either party.

Correspondingly, if the principal/homeowner has a mortgage, the proceeds may be paid to the bank under the terms of the mortgage and the Property Law Act 2007. If that situation is relevant to you, have you checked with your bank whether they will re-advance the funds to enable completion of your building work?

9. Summary

Before you embark on a building project, make sure you know the risks you are taking on, your insurance obligations, and what your policy actually covers you for. Even if you are not obligated to take our insurance, consider – can I afford to complete this project without insurance if the worst case happens?

If are you are unsure of what your obligations are under your build contract or whether your insurance cover is adequate, take professional advice. Don’t leave it until a claim is made to find our whether your insurance cover adequately protects you or not.

If we can assist in any way with a building or insurance matter, please do not hesitate to contact us at insurance@parryfield.com.

For those waiting to settle earthquake claims, the six year limit to get judgment against your insurer is looming. This article considers the time limit, answers some key questions and proposes some options.

What is the time limit?

An insurer can defend a claim if it is filed in Court more than 6 years after the date of “the act or omission on which the claim is based” (Limitation Act 2010). For pre 1 January 2011 claims, time runs from “accrual of the cause of action” (Limitation Act 1952). This is unlikely to make much difference. So the time limit for claims is likely start expiring on 4 September 2016.

If no Court proceedings are filed and a time limit defence is successfully raised by an insurer, the claim will be struck out by the Court. The insurer can then refuse to pay anything.

Why have a time limit?

The law has long required those seeking justice not to sleep on their rights. Delays in bringing an action can mean loss of witnesses, dimming of memories, and losses that could be avoided by bringing a dispute to Court promptly. Defendants should not have claims hanging over them indefinitely, which they may need to hold insurance cover for. For insurance claims, the time limit for taking action has long been 6 years.

When does the 6 years start running from?

Probably the date of the earthquakes. The New Zealand Courts are yet to consider this issue for earthquakes. English cases suggest that under insurance policies, contractual rights exist from the moment an insured event happens. Therefore the time limit would run from the date of the relevant earthquake.

Some commentators believe time should run from the date an insurer declines a claim, or ignores it. A New Zealand decision about an illness policy did hold that the time limit started when the insurer made a decision to decline a claim. But the English decisions seem to fit better with earthquake claims. It would be difficult to be precise about when an insurer has “declined” a claim. What about reasonable delay? What about just being unreasonable? No claimant will want to spend days in Court arguing about whether their claim is allowed to be in Court at all.

What is the relevant earthquake?

This will depend on which quake caused the damage. EQC has allocated damage based on broad percentages. Where it really matters however, it will be necessary to prove more precisely exactly what damage was caused when. It may be difficult to determine this. The Court may need to decide based on expert evidence, photos, computer modelling etc.

My insurer has delayed my claim. Will this affect the time limit?

Unlikely. As the time limit for property insurance claims is likely to run from the date of the relevant earthquake, conduct of the insurer is usually irrelevant. If earthquake damage was hidden, and came to light later, that may qualify as late knowledge and postpone the start of the 6 year limit. It is unclear whether EQC waiting for 6 years to decide that a claim is over cap would prevent an insurer relying on the 6 year limit.

Can the government use Limitation Defences for EQC or Southern Response?

The government is able to use Limitation defences, but it is uncertain if that applies to EQC. EQC is not an insurer, instead it offers a statutory scheme of insurance. But the Courts have applied Limitation defences to similar claims “by analogy” in the past, so it is likely they could be used for EQC.

Limitation defences will apply in the usual way to the AMI policies that Southern Response took over.

What happens if the six years runs out?

If proceedings are not issued before 4 September 2016, no damage from the 4 September 2010 earthquake would be payable. A claim for February 2011 damage could still be made. But a lot of effort would be needed to prove the exact cost of the damage caused in September, which would then be deducted from any pay out.

Claimants can still attempt to negotiate with their insurer after the time limit expires. But if they will not pay, Court action cannot be taken. This will leave claimants with no negotiating power and no options.

 Can a Court extend the 6 year limit?

No. The limit is set by Statute. The Court can use a late knowledge period to postpone the starting of the 6 year limit in certain circumstances. The period then usually runs from the date when the claim was known, or could have been discovered, e.g. in sexual abuse claims and some latent defects in buildings. Generally, neither silence by the insurer or entering into negotiations will be enough.

Does the time limit automatically apply?

No, the time limit only applies if an insurer raises it as a defence. Insurers can agree to a “standstill”, or they can agree not to use a Limitation defence for a period of time. Such a “Waiver” must be clear and unequivocal, making it unfair for an insurer to later try to rely on a limitation defence.

We have written to the Minister responsible for EQC and to the Insurance Council of New Zealand. We asked them to give a public waiver, and asked for written confirmation that neither will raise the 6 year limit to try and avoid paying valid claims. We are awaiting their response. There are several possible outcomes:

(a) No response.

This would signal insurers (and their reinsurers) want to rely on limitation defences. The only safe way to protect claims will be to file Court proceedings. Legal costs may be partly recoverable from the insurer.

(b) Insurers refuse to offer a waiver to all claimants, telling them to seek a waiver one by one.

But if waivers are to be freely offered, why require people to write in one by one? This will involve many insurer’s hours which could otherwise have been spent solving outstanding claims. Some claimants will do nothing and fall through the cracks. The individual waivers granted by insurers may be adequate, or they may not. Claimants without legal advisors are unlikely to know until it is too late. Claimants with legal advisors will have to foot the bill for seeking and receiving an appropriate waiver. These legal costs may be partly recoverable from insurers.

(c) Insurers could offer a blanket waiver for say two years.

This would need to be clearly and publicly stated. It could postpone the date for filing Court proceedings until 4 September 2018.

(d) The government could bring some clarity.

It is not likely that Parliament could act, or a Court decision could move through the appeals process in time, given the September 2016 deadline.

I have signed an agreement but have not been paid.

If the insurer has agreed to the claim and signed an agreement the positon may be different. A contract to pay the cost of rebuilding a house will usually become its own cause of action. If an insurer fails to perform under that contract, the limitation period would usually run from the date of that breach. Note however that while this will often be the case, it will depend entirely on the wording of the agreement and the promises the insurer has made.

How do I avoid missing out if insurers will not give up the limitation defence?

The Limitation Acts provide that time stops running when the claim is filed in Court. Any claim will need to be filed in Court within 6 years from the date of the relevant earthquake, so by 3 September 2016 or 21 February 2017.

Where there is uncertainty as to which earthquake caused the relevant damage, it would be safest for claimants to file their claim before 4 September 2016.

If you have not yet settled your earthquake claim, do not leave it too late to seek competent, professional advice. Claimants may be able to recover a part of their legal costs from insurers. Good advice may also help you settle your claim well before the relevant time limits. But either way, the September 2016 time limit will soon be upon us.

Please click here to see the 2 attached letters:

  1. Open letter to: The Honourable Gerry Brownlee
  2. Open letter to: T Grafton / N Mereu

If we can assist in any way with your insurance claim, please do not hesitate to contact us at insurance@parryfield.com.