Don’t look a gift horse in the mouth, family told

No insurer can be expected to accommodate a family indefinitely in “extraordinarily expensive” accommodation in Dublin’s five-star Four Seasons Hotel until their flood-damaged home is repaired, a High Court judge has said.

Mr Justice Peter Kelly in the Commercial Court said Ann Marie Glennon Cully and her children Zane and Zara — who are living in a one-bedroom apartment attached to the hotel — might consider “reducing their standard of living” to “more modest accommodation.”

He described as “very reasonable” an offer by insurer Axa to pay €645,000 towards reinstating their “effectively derelict” home at Victoria House, St John’s Road, Sandymount, Dublin 4, and funding alternative accommodation until works were complete.

Axa’s offer also gave an option of seeking additional payments should the works cost more and, while he could not compel them to accept it, “I would not look a gift horse in the mouth”.

While the family pleaded “impoverishment”, that had to be looked at in light of Axa’s repeated offer to pay €645,000.

The hotel also seemed an “extraordinarily expensive” method of alternative accommodation as the family had a responsibility to mitigate their loss, the judge said.

Refusing to order Axa to pay the €645,000 offer into court, the judge said money was available now to the family should they choose to accept it and the court could not be a “project manager” for repairs. He also refused to order Axa to pay €50,000 legal costs of the family or continue to insure the property.

The family, whose home was first flood damaged in late 2009 and who moved into the hotel in Oct 2011, are adults who “have to behave sensibly” and it was up to them to get on with the repairs.

Ms Glennon Cully had engaged three loss adjusters but dispensed with their services; three engineers “met a similar fate” and a broker “likewise departed the scene”, said the judge.

“It is difficult to see how any insurance company can be expected to deal with a claim where the dramatis personae are constantly changing.”

The family could also not reasonably expect to be accommodated in the Four Seasons for “a seemingly, never-ending period of time until advisers are found to satisfy them”.

Earlier, he said it seemed works were under way at Victoria House when the first flooding incident occurred in 2009. While the court had heard “graphic descriptions” of the damage, and the family claimed they wanted to repair it and move back in, it was “remarkable” nothing substantial had been done to date, especially as Axa previously paid €159,000. There was “no reasonable basis” for criticising Axa as it tried to sensibly resolve the claim.

He made the comments when refusing the family’s application for certain mandatory orders against Axa Insurance Ltd pending a full hearing of their action arising from the flood damage in 2009 and 2011.

The family applied last week for injunctions requiring Axa to pay them an interim €100,000 to meet payments, including for another six months in the hotel. Axa offered a lump sum of €645,000 after claiming Ms Glennon Cully was “impossible” to deal with and should organise remediation works herself.

While it was initially indicated the family were likely to accept that offer, that did not happen and the injunction application proceeded yesterday. Michael Forde sought orders, including that Axa pay €645,000 into court to fund repairs and alternative accommodation and directing his side to organise reinstatement works and do their best to get insurance cover.

The family would be “on the side of the street” if the orders were refused, he said.

Paul Fogarty, counsel for Axa, said three years had elapsed since the actual loss occurred but there is still no information about Ms Glennon Cully’s proposed works and Axa could no longer deal with her as it was a “dialogue with the deaf”.

Mr Justice Kelly ruled that Axa had not sought to avoid the policy and referred to Axa’s offers and funding the Four Seasons alternative accommodation via €7,500 monthly from Oct 2011, reduced to €5,000 monthly from Apr 2012.

While assuming the family had made out a serious issue to be tried relating to the works and costs, normally damages would be adequate to meet that, he said.