We were instructed by a British client, who had after a number of years of working as an expatriate, invested her savings in a house on the Bulgarian Black Sea Coast in which she and her husband intended to spend the next years of their lives. Sadly, her insured property was fully destroyed by a fire.
As required in certain cases of damage (generally, high-value ones), the local police force and prosecutor's office had initially investigated the fire, but had concluded that it had been caused by a storm and therefore had been no-one’s fault.
The insurer had refused to pay any compensation under the insurance policy which our client had taken out for the house.
The insurer based its refusal to pay out on its General Terms. These contained a provision which it alleged gave it the right to refuse compensation where the loss was caused by a construction defect and/or changes to the building's interior, which were in breach of construction regulations.
According to a report produced by the insurer, the cause of the fire was related to a fireplace and appurtenant chimney (neither of which were part of the planning permission for the house). The report found that the chimney had been built in violation of a construction regulation requiring that it should be at least 10 cm from any wooden elements in the roof.
Given that the official investigations (by the Police and the Public Prosecutor) had found that the fire had been caused by a storm and not a construction defect, we felt that our client was entitled to be compensated. Following a failure of the insurer to settle out of court, we eventually issued a claim against the insurer on behalf of our client.
Somewhat surprisingly, in the course of the proceedings, first a single court-appointed expert, then a panel of three such experts, confirmed the insurer's position that the cause of the fire had been a construction defect and not the “official” view of the Bulgarian police and Public Prosecutor. This required a complete reconsideration of our initial strategy on the fly. This new, expert, evidence (which stood unrefuted) was that the fireplace and chimney had been improperly and unlawfully built.
We decided to submit that since:
neither the fireplace, nor the chimney had been built by our client or on her direct instructions; and
our client had bought the house with all necessary building permits, including a valid Use Permit; and the defect (that the chimney was actually touching the wooden roof) was latent and not visible, she could not be held liable and the risk should still be covered by the insurance policy.
Both the first and the second instance courts found in favour of the insurer emphasising that there had been a specific liability exclusion term agreed by the parties which was incorporated in the insurance contract (from the General Terms).
We had solid grounds for our view, and our position was vindicated when the case reached the Supreme Court and the prior decisions were reversed. The Supreme Court accepted that as the insured had not built in breach (nor had instructed an breaching construction) of the fireplace and the chimney, the insurer had to compensate for the loss caused by the fire. Very soon after final judgment, the insurer voluntarily paid the insured amount.
The Supreme Court's judgment in this case has binding force for all Bulgarian courts in similar disputes.
It is not rare for insurers’ arguments for refusal of payment under an insurance policy to not stand up to scrutiny in court. This is so even where the insurance contract’s clauses might appear on their face binding for the insured and to preclude recovery.
In this case, the wording of the contractual clauses did not distinguish as to who had carried out the unlawful works - judging from these clauses, whether they had been carried out by the insured itself, her agents, or any third party, the result could be argued to be the same: the insurer did not have to pay.
Being able to demonstrate that a literal interpretation of this contract was inappropriate was decisive for the judgment in our client's favour.
From our experience in insurance law, we would recommend to clients to seek specialist legal help in interpreting an insurance contract's terms, where an insurer refuses to pay under a policy.
A consultation with a specialist should allow you to have a much more confident view of your chances of success, no matter how convincing (and therefore hopeless for you) is the wording used by the insurer in its standard policy documentation.
The case did not directly engage a discussion of consumer-specific principles of law (including European Union consumer protection directives), as our client had purchased the property through a wholly-owned Bulgarian company, but in other cases, these would provide an additional reason to read down overly wide or general exclusion clauses in insurance contracts.
Acting as a Bulgarian law expert in the context of a FIDIC Dispute Adjudication Board
NBLO acted as Bulgarian law experts to a Dispute Adjudication Board constituted under the terms of a FIDIC modelled construction works agreement between the Bulgarian government and a continental Europe-based general contractor. Advised in detail and in successive iterations in relation to the Bulgarian law questions raised by the DAB at the summary of issues stage as well as at the reply and comments stages. Of particular importance to the DAB was the ability of NBLO lawyers to advise on the distinctions between Bulgarian law principles and proximate English and Swiss law concepts in the law of contract as well as to advise on the direct effect and direct applicability of certain European Commission legislation as a matter of Bulgarian law.
© New Balkans Law Office 2020