Account of the case

On 14 March 2023, the Customer phoned the Insurance Company and reported that their children of 2 and 4 years had, on 8 February 2023, drawn on the papered wall of the rental apartment, and asked whether the damage can be paid from the Customer’s home insurance at the time when they will be moving out of the apartment. According to the Customer, the move had not yet materialised.

On 4 August 2023, the Customer took a new phone contact with the Insurance Company and told that they had received an invoice of € 1,962 related to the earlier reported damage, with the wallpapers accounting for € 1,200 of the invoice.

On 4 August, the Insurance Company made a negative decision on the claim on the grounds that the damage could not be regarded unforeseen as required by the Policy terms. The Insurance Company found that the Customer had, when making the notification of the loss, told that the children had already earlier drawn on the walls of the previous apartment but there, the Customer had been able to paint the wall. The Insurance Company found that it cannot be unforeseen that the children had again drawn on the wall, even if they had changed the apartment.

On 10 August 2023, the Customer sought redress for the negative decision on the claim. In the redress documentation, the Customer told that in the earlier apartment, the markings/drawings on the wall could be cleaned away and no painting was necessary. According to the Customer, the damage could not be deemed foreseeable since this kind of damage had not taken place in any of their earlier apartments. Should the damage be considered foreseeable, it would mean that they would have had the very same problem in their earlier apartments. Moreover, the Customer told they had also notified a drawing made on the door on the same day, but here the Customer did not find it necessary to take action since the drawing was not so loud and the owner of the apartment could make decision on it at a later stage. Appended to the redress documentation, the Customer sent photos of the drawings on the wall. In addition, the Customer noted that the case was not only about the wallpaper but of other damage that had taken place in the apartment.

On 13 December 2023, the Insurance Company made a new negative decision on the claim, still considering that it was not a case of unforeseen damage. According to the decision on the claim, the Customer had sent the Insurance Company the invoice of € 1,900.62 received from the landlord P Oy, in which the wallpapers and the wallpapering of the bedroom and living room accounted for € 1,083.60. In addition to the wallpapering, the Customer claimed compensation for cuts in the wallpapers and other breaks, totalling € 1,900. The Insurance Company found that the claim made by the Customer was more or less the same as the invoice received from their landlord, including invoicing for, e.g., removing of a mirror, cleaning of the cooker hood filters, change of a door and rekeying of the locks. In their decision on the claim, the Insurance Company noted that, according to the Policy terms, the insurance compensates for a direct material damage caused by breakage or other sudden and unforeseen occurrence of an insured event. The Policy will not cover a damage caused by normal use or wear and wear, scratching, denting or another phenomenon taking place gradually. The Insurance Company also found that no other expenses itemised in the invoice received by the Customer from their landlord could be classified as sudden and unforeseen individual damages, higher than the deductible of € 150 for each individual damage. Moreover, the Insurance Company referred to the clause in the Policy terms according to which it is up to the Claimant to show that an insured event compensable by the Policy has taken place. According to the Company, the documents and information provided by the Customer fail to prove that an insured event or events compensable by the Policy has/have taken place.

Customer’s complaint

The Customer was dissatisfied with the decision on the claim taken by the Insurance Company, demanding that the Company pay the full amount of the invoice, or € 1,900.62, received by the Customer from their landlord. Moreover, the Customer claims € 5,000 of compensation for all the time they have spent on clearing the case.

Reply by the insurance company

In their response to the Insurance Complaints Board, the Insurance Company reiterates their negative views.

The invoice received by the Customer from their landlord includes the wallpapering of the living room wall, wallpapering of two walls in bedroom 1, wallpapering of one wall in bedroom 2, wallpapering of one wall in bedroom 3, the wallpaper rolls, rekeying the lock, plugging of the dishwasher, cleaning of the cooker hood filter, change of bedroom door, assembly of the dishwasher cabinet, paints, cleaning of the bathroom shower corner, removal of extra racks from the bathroom wall, removal of the mirror from the wall as well as wall puttying and painting. The invoice was dated 14 July 2023 and the Policyholder had moved from the apartment on 30 June 2023. Moreover, the Insurance Company was provided with photos of four rooms in which  the wall papers of three of the rooms had scratches on several wall surfaces as well as one room and at least one door had children’s drawings on them. There were also photos of the cooker hood filter, wall mirror, rack on the bathroom wall, damaged floor base board and dismantled dishwasher cabinet.

According to the Company, the wall surface scratches, dents and marks on several rooms, as shown by the photos, cannot be deemed to indicate any sudden or unforeseen damages in excess of the € 150 deductible applicable to each separate damage case. The damage has been happening over a longer period of time since they are manifest on several wall surfaces in different rooms.

As regards the children’s drawings on the walls, the Insurance Company finds that the drawings on the walls and doors are large and in several points in the apartment, and so the children cannot have done them at a spur of a moment but the pictures have been made over a longer period of time. The damages caused by the children are of made at such a tender age that they will not have been alone at home and so the drawings have not been made in the absence of the parents. Moreover, since the children had also drawn on the walls of the previous apartment, there had been a clear need to control them and the risk of damage was obvious. This has not been the case in the Policyholder’s action, and they have not, for example, taken the drawing materials away from the children. The Company finds that the Policyholder has clearly taken a permissive or at least negligent stand to the case and that as such, the damage has been intentionally caused by the Policyholder.

Moreover, the Company finds that the Policyholder’s demand for the repair and cleaning work items invoiced after their change of apartment (rekeying of the lock, cleaning of the cooker hood filter, cleaning of the shower corner, removal of the mirror and bathroom rack, plugging of the dishwasher and assembly of the dishwasher cabinet) are related to the removal from the apartment and are by no means compensable by the home insurance policy.

According to the Company, the Claimant must provide the Insurance Company with such documents and information as can be used to establish whether an insured event has taken place, what is the size of the damage generated and to whom the reimbursement should be paid. As far as possible, the Insured must participate in the clarification of the damage as well as contribute to the finding out of the actual causes. The claims settlement can only be made once the sufficient clarifications on the damage have been obtained to estimate the liability of the Insurance Company.

The Policyholder’s demand related to the use of time is, according to the Company, unfounded as per the Insurance Contracts Act and the Insurance Contract at hand, and therefore it will not be paid based on the Home Insurance Policy.

The Company finds that there is no reason to change the decision on the claim. Should the Insurance Complaints Board recommend, contrary to the Company’s opinion,  that the compensation is to be paid for the damage, the Company finds that this is a series of several insured events, each of which is covered by a specific deductible.

Recommended solution

Formulation of question

The question in this case is whether the drawing by children of 2 and 4 years of age can be considered an unforeseen insured event. It must also be assessed whether the Customer can be deemed to have acted intentionally in the case.

Moreover, there is a question whether the home insurance policy would cover the surface scratches on the walls reported by the Customer.

The applicable norms of Law and Policy terms

Under Subsection 1 of Section 30 of the Insurance Contracts Act (Occurrence of insured event caused under non-life insurance), the Insurer is discharged from liability towards an Insured that has wilfully caused the occurrence of an insured event. Under Subsection 2, if the Insured has caused the occurrence of an insured event through gross negligence, the compensation payable to the Insured may be reduced or refused.

Under Subsection 1 of Section 36 of the Insurance Contracts Act (Irresponsibility and emergency), the Insurer may not invoke the provisions contained in this chapter in an effort to be discharged from liability or to reduce its liability if the Insured was younger than twelve years or in such a state of mind that the Insured could not have been sentenced to punishment for a crime when the Insured caused the occurrence of an insured event or failed to comply with precautionary guidelines or failed to fulfil the duty of salvage.  The provisions laid down here do not apply in the case referred to in Section 28, Subsection 2.

Under Section 69 of the Insurance Contracts Act (Claimant’s Duty of Disclosure), the Claimant shall provide the Insurer with such documentation and information as is required for assessing the Insurer's liability and as the Claimant can be reasonably required to provide, with due consideration of the opportunities available to the Insurer to obtain such information.

Under the Home Insurance Policy Terms, in force as of 1 January 2022, Clause 5.1. (Insurance Covers and the insurance events compensable on that basis), the Policy will reimburse the direct material damage caused the Insured Party’s property suddenly and in an unforeseen manner, with the event classifiable as an individual event.

Under Clause 5.1.6 (Breakage), the Insurance will cover a direct material damage caused by

• breakage
• other sudden and unforeseeable insured event.

This insurance cover will not encompass an insured event which, under these Policy terms, can be reimbursed by another insurance cover.

Under Clause 5.3.4 (Damage taking place gradually), the Insurance Policy will not cover damage which has been caused to the object of the Insurance itself, due to its normal wear or tear, scratching, denting, corrosion, rusting, rotting, decaying or natural weakening of or other gradual phenomenon affecting the materials or caused by moulding, fungal decay, microbes, smell, moist or condensed water.

Evaluation of the case

The Customer has claimed compensation for the P Oy invoice of € 1,900.62 based on their Home Insurance Policy. Invoice includes a specification of measures taken by the landlord after the Customer had moved away from the apartment. In their notifications of claim, the Customer stated that they are seeking compensation for the damage caused by the drawing of the children on the wall as well as cuts in the wallpapered walls.

The invoice includes the following measures: Cleaning of the cooker hood filter, wallpapering of the bedroom walls, wallpaper rolls + paste, rekeying of the lock, wallpapering of the living room wall, replacing two doors in the bedroom, assembly of the dishwasher cabinet, paints, cleaning of the bathroom shower corner, removal of extra racks from the bathroom wall, removal of the mirror from the wall as well as wall puttying and painting. According to the invoice, two walls were wallpapered in bedroom 1 and one wall each in bedrooms 2 and 3.

Children’s drawings on the walls

Under the applicable Policy terms, the Policy covers direct breakage damage caused to the insured property due to a sudden and unforeseen reason.

In this case, it is undisputed that the walls of the apartment have suffered damage when the Customer’s children of 2 and 4 years of age have drawn on the walls which has caused expenses for the change of wallpapers. The dispute is about whether the event can be seen as unforeseeable.

The Insurance Company finds that the drawing on the walls by the children cannot be deemed unforeseeable since, according to the Customer, they also had drawn on the walls in the family’s former apartment. The Customer reported that they could themselves clean the walls from the walls as it was a painted wall. In this respect, the Complaints Board finds that it remains unclear when and to what extent such earlier drawing on the walls took place.

The Complaints Board finds that, as a premise, a situation in which a small child draws on the walls without permission can be seen as an unforeseen events as per the Policy terms, unless some detail in the circumstances of the event suggests that it was, indeed, a foreseeable event. However, the fact that a child has, at some point in the past, once drawn or marked the wall, does not make this an foreseeable event in a way that would exclude the compensation for the damage.

The Insurance Company has also pleaded the fact that the drawings are so big and so many that they could not have been made in a moment but over a longer period of time, whereby it would not qualify as an sudden damage as required by the Policy terms. In this respect, the Complaints Board finds that the photos indicate a larger number of drawings of a larger size, but on the other hand, they are simple drawings made by small children, seemingly made with a similar pen. According to the Complaints Board, it is difficult to estimate the time spent on the drawing, and the Complaints Board finds it possible that the drawing could have been made within a shorter time.

Based on the above, the Complaints Board finds that the drawing on the walls by the children, in the case at hand, must be considered – as a type of event – an insured event caused by a sudden and unforeseen event, compensable by the Home Insurance Policy. When considering the case, the Complaints Board has also taken into consideration the provision under Section 36 of the Insurance Contracts Act whereby the Insurer may not invoke the provisions contained in this chapter in an effort to be discharged from liability or to reduce its liability if the Insured was younger than twelve years when causing the insured event.

The Insurance Company has also suggested that the Customer has caused the damage intentionally by condoning the damage or at least taking an indifferent stand to it. In this respect, the Complaints Board finds that the more detailed circumstances of origin, such as how the children got hold of the pens, remains unclear in the case at hand. The burden of proof for causing the damage intentionally or through gross negligence by the Policyholder, lies with the Insurance Company. The Complaints Board finds that no such clarification has been provided in the case as would suggest intentionality or gross negligence by the Customer and would motivate the reduction or full denying of the compensation.

As to the drawings on the walls, the Insurance Complaints Board recommends that the Insurance Company pay the compensation for the change of wallpapers. As concerns the invoice of P Oy, the sum of € 1.084,60 was attributable to the cost for change of wallpapers, and according to the invoice, the wallpapers were changed on four walls. Based on the clarifications available to the Complaints Board, apart from the drawings on the walls, there have also been other reasons for the change of wallpapers. Based on the photos available, the Complaints Board assesses that the drawings account for € 700 for the change of wallpapers and therefore recommends that the Insurance company compensate the damage caused by the children’s drawing on the walls to the extent of € 700, subject to a € 150 deductible.

Other demanded compensations

The Customer has also requested compensation for other expenses under the P Oy invoice, payable from their Home Insurance Policy. For this part, the Customer has not, in the understanding of the Insurance Complaints Board, provided the Insurance Company with any clarifications of an event or several insured events taking place.

Under general insurance and tort liability principles, the Customer as the Claimant part carries the burden of proof for the occurrence of the insured event compensable by the Insurance Policy.

Since the Customer has not provided any clarifications on an occurred insured event as relates to other demands made, and taking into consideration the exclusion clause related to gradually occurring damages, the Complaints Board does not, for this part, recommend any change into the decision on the claim made by the Insurance Company.

Moreover, the Customer has claimed a € 5,000 compensation on the time spent on the case. Based on Clause 6 of  the Regulations, the Insurance Complaints Board does not examine the question of reimbursement of expenses incurred for the complaints addressed to them. The expenses claimed by the Customer qualify as reimbursement of said expenses meant here. For this reason, the Insurance Complaints Board does not examine the Customer’s claim related to the expenses.

Final outcome

The Insurance Complaints Board recommends that the Insurance Company pay, as compensation for the damage caused by the children on wall surfaces, the total of € 550 with legal interest on arrears. For the rest, the Complaints Board does not recommend changes to the Insurer’s decision on the claim.

The Insurance Complaints Board’s decision is unanimous.

INSURANCE COMPLAINTS BOARD

Chairperson Bygglin
Secretary Toukonen

Members:
Kankkunen
Sario
Vaitomaa
Yrttiaho