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To bailee or not to bailee?

My client runs a small self-storage facility, mainly made up of shipping containers. The terms and conditions of storage that he requires all clients to sign state: "The service provided to you, the storer, by the owner is the right to use a space provided by the owner for the sole purpose of storing goods. No other goods or services are provided by the owner." "Goods are stored at your sole risk. The owner is not liable for the loss or damage to any goods stored on its premises."

My client is not involved in the process of moving goods in or out of the facility. Storers provide their own padlock and are able to come and go as they please to remove or add things to the containers.

In a recent renewal discussion I explained that

CROSSLEY GATES

At law, a person is a bailee if he or she has possession of goods belonging to someone else. The key is possession.

Here your client has possession on his or her land goods belonging to someone else - your client is a bailee of the goods. The obligations of a bailee at common-law apply to your client.

In the light of this, I suggest it would be wise to arrange bailee's liability cover. For some reason that QUESTION

property in care, custody and control was excluded under his public liability policy which led to a discussion around bailees cover.

After speaking with a colleague he suggested that bailees was not required as all my client is doing is providing space to store items, rather than managing the facility. They see this more as a property owner/landlord type risk as my client has clearly stated in the terms and conditions that goods are stored at their own risk.

I am not sure that this would stand up if my client was sued for damage to storers property, say from a leak in a container which caused damage to the goods stored.

Any advice on this would be much appreciated.

I have never understood, the insurance industry refuses to call the nature of the liability covered by its correct legal name. Instead it refers to it as cover for property in the insured's care, custody or control.

A bailee can limit or exclude his or her legal liability as bailee in the contract of bailment. I suggest your client takes legal advice about whether its terms are worded sufficiently widely to achieve this.

Tenant breaches warranty

If a tenant breaches a warranty under a material damage policy which gives rise to a claim, will the landlords’ policy still respond?

Providing that the landlord has provided the tenant with a copy of the warranty and has done all they can to make sure it’s being followed.

What is the legal precedent?

CROSSLEY GATES

Who are the insureds under the policy? If the tenant is not included then your client is okay as long as he/she hasn't breached the warranty.

If the tenant is an insured, then you need to see whether the insureds are covered jointly or severally (separately).

If severally, the legal effect of this is that each insured has his/her own separate policy. Therefore a breach by one insured is not a breach by the other insureds (under their separate policies) unless they have separately breached also.

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Solar struggle

The claimant was engaged by a TP to install a solar array on the roof of their home.

The insured is a solar installation company. The company made an inspection of the internal roof void but only identified building paper.

The property is two-storey, and an external survey was not carried out prior to the day of installation.

The installers erected scaffolding and immediately began the installation. During the installation they damaged/ deformed the decramastic / pressed metal roofing tiles and made holes in the roof for conduit channels and cabling.

The installers did not stop, nor did they take measures to avoid damaging any further tiles as the installation progressed, the deformed tiles would be concealed by and the holes sealed once the solar panel array installation was completed.

Having almost completed the installation the team 'discovered' the decramastic tile roof was overlaid onto the original roof.

The array had not been anchored directly to the roof trusses and as a result the entire installation had to be removed further damaging the roof and revealing the damaged tiles and the holes made during the installation .

The claim submitted is for the costs of remediating the roof.

The homeowner is not insured.

The insurer has declined the claim on the basis that the damage to the roof was not unexpected from the insured’s standpoint. In fact, the employees knew it was occurring as the works were being done.

They also declined to cover any additional damage sustained to the roof by having to remove the installation after it was determined that the roof was unsuitable for the solar panel array as this would also fall outside the scope of cover, given the insured knew that the damage was occurring simultaneous to the installation.

It is our contention the policy should be triggered because the negligence took place prior to the work commencing in that the installation team had the opportunity but failed to inspect and confirm the roof was suitable for the installation once the scaffold was erected and before they started the installation . What do the experts think ?

CROSSLEY GATES

I am afraid the insurer is correct. A general liability policy insures accidental property damage during the period of insurance for which the insured is legally liable. The trigger for the cover is the accidental property damage, not the negligent act.

It is fundamental to insurance that it insures a fortuity, not a certainty. All the 'damage' you describe was intentional work done by the client. Unfortunately for the client, the work was all in vain because it had negligently inspected the job before commencing it. That doesn't change the fact that the damage was not accidental for the insured's point of view, and therefore not covered.

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Covered by the EQC?

The local hospice has a stand-alone dwelling on the grounds of the hospice which is used by relatives of patients for short-term stays. Multiple parties use the dwelling over the course of the year and for some periods it is unoccupied. The dwelling has its own kitchen and bathroom.

The hospice buildings (including the dwelling) are insured commercially, it is assumed the dwelling is covered by EQC and a levy should be charged accordingly. Please can you confirm?

EQC

For it to be a residential building for the purposes of EQCover, you must establish the existence of a Dwelling.

The premises must: • be self-contained; and either • be the home or holiday home of at least one person; or • be capable of being the home or holiday home of at least one person and be intended by the owner of the premises to be the home or holiday home of at least one person.

A home is defined where a person chooses to live (whether alone or with others) on a more than temporary or transient basis and the prime purpose of the premises is to serve as somebody’s home, then this will constitute a home for EQCover purposes.

The property described as used by relatives of patients for short-term would not meet the definition as home and unlikely to be seen as a holiday home either so an EQC levy should not be collected. QUESTION