Recourse against the refusal of guarantee of your damage to work insurer: how to contest its position?
The damage to work insurance is an insurance covering the private individuals or the professionals carrying out construction works aiming at the realization of a work.
It guarantees that the repair works will be taken in charge if defects or deficiencies affect the solidity of the work and make it uninhabitable or unfit for the use for which it is intended (important cracks, roof collapse…) appear.
It also covers defects or deficiencies that compromise the soundness of the equipment elements that cannot be separated from the viability, foundation, framework, and roofing works.
The damage insurance guarantees the damage apparent or not at the time of the reception of work.
In the event of the appearance of deficiencies or defects, the insured must declare the loss to his insurer, who will investigate the case by appointing an expert.
The insurer has in principle 60 days to take a position. If the insurer grants coverage, it has an additional 30 days to formalize a compensation proposal to enable you to finance the repair work, i.e. a total investigation period of 90 days.
However, if the insurer refuses its guarantee or if it sends you an insufficient work proposal, many policyholders are at a loss and do not know how to react and within what timeframe.
The position of the damage to work insurer can be challenged for several reasons:
- The deficiencies or defects are indeed of a decennial nature or the proposed work is insufficient. The insured can bring a case before the Court of Justice for a summary expert opinion so that a legal expert can be appointed to determine the deficiencies, whether or not they are of a decennial nature and to recommend the amount of work to be done. The use of a lawyer is essential in order to act before the Court.
- The damage to work insurer has not respected the 60 and 90 day deadlines for notifying its guarantee position and possibly a proposal for compensation in the event of acceptance of the guarantee. In this case, the insurer can be condemned to take charge of all the deficiencies declared, even if they are not of a decennial nature (Cass civ. 3°, Dec. 3, 2003, RG n°01-12.461 – CA BORDEAUX, May 29, 2009, RG n°08/04559).
- The damage to work insurer has refused to guarantee without expressly motivating its refusal. In this case, the insurer may be ordered to cover the declared loss, even if the deficiencies noted are not of a ten-year nature (article A. 243-1 of the Insurance Code – Cass. civ. 1°, January 10, 1995, RG n°93-12.127, Bull. civ. I, n°22).
- The insurer has not taken a position on one of the deficiencies declared. It is also obliged to take responsibility for it.
This list is not exhaustive.
On the question of the time limit for taking action against your insurer, the time limit is two years on the basis of article L. 114-1 of the Insurance Code.
The difficulty lies in the starting point of this short period.
In the event of a refusal of coverage and if the damage insurance company had appointed an expert, it follows from article L. 114-2 of the Insurance Code that the starting point for legal action is the appointment of the expert to investigate your case.
The starting point does not therefore run from the refusal of the guarantee. You must be particularly vigilant on this point. In case of recognition of a guarantee but an insufficient indemnity proposal, it results from article 2240 of the Civil Code that the starting point for legal action is in principle the date of the letter of the indemnity proposal sent by the insurer.
Our lawyers are at your disposal to answer all your questions and advise you. Our meetings can be held in person or by videoconference. You can make an appointment directly online at www.agn-avocats.com.
AGN AVOCATS – Real Estate Law
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