Collusion and complicity among experts in construction damage trials.
There is a practice to which the Supreme Court has put an end. It concerns cases in which a bank has taken out mortgage protection insurance, which guarantees that the bank will collect the outstanding payments if the borrower dies, the beneficiary of the insurance being the bank. When the borrower died, the family would go to the insurer to claim payment. The answer was that it was the bank or savings bank that had to claim, since it was the beneficiary. In other words, the family was denied standing.
Thanks to this impossibility, the bank did not claim from the insurer and continued to demand the mortgage instalments from the heirs. What scoundrels! And if they did not pay, it went ahead with mortgage enforcement.
Why did this happen? Because there is a close relationship between the bank and the insurer; the insurer may even belong to the bank’s group. One recovers the property or keeps collecting, and the other pays nothing out. The Supreme Court put an end to this by ruling that the family did have standing. Ex lege.
But what about trials for damage claims? The Supreme Court has not yet come to our aid there. Very often expert reports are not objective. And yes, there is collusion between the parties.
The insurance companies’ experts usually say that… “The damage observed is more likely to originate from the poor maintenance carried out”,… “…the crack measurements obtained are minimal and it cannot in any way be inferred that the mechanical strength is compromised or that the structure is unstable.”
*How can they say that major cracking in the walls is due to lack of maintenance? *Do they think it normal that, in a short period of time (less than 4 months), movements of 0.4 mm are recorded in cracks? *Does the expert not realise that this is a constant progression of the crack, which has not stopped moving?
*But why do they not provide photographs of the crack monitor readings? *Do they not realise that, as experts, they must provide evidence, and that they have not provided any that we can check?
*How can the expert state that the tell-tales have not moved significantly if he has not provided any reliable evidence of the checks? Why do they turn a blind eye and refuse to look? They say it so brazenly, sheltered by their qualifications and with an air of vast experience, that judges sometimes believe them, the case is lost, and unjust judgments are handed down.
The root cause of this lack of rigour is not the expert’s ignorance. It is that the expert (judging by the number of cases we handle) is almost certain to belong to the same architects’ insurer as the defendant, and if he submits an unfavourable report, the insurance company will probably not hire him again; and if he has not been hired by the insurer but drawn by lot or taken from the list of experts, he is very likely to be insured by it. He has an interest. And there is, as far as we know, only one architects’ mutual insurance company in Spain, with more than 35,000 architect members, which pulls almost all the strings in these cases.
Architects who share the same insurer or the same mutual as the defendant architects CANNOT ACT AS EXPERTS IN THAT CASE FOR THE DEFENDANTS. And this can be solved simply by allowing them to be objected to or challenged beforehand, automatically, in the proceedings. Ex lege.
And why not rely on articles 105, 342.2, 124.1, 339, etc. of the LEC?
Because all these articles refer to the defendants, but not to whoever is behind them. Let us explain: behind the defendant is its insurer, which has not been sued and does not officially appear. We know this because, when the lawsuit is filed, it is an architect from the insurer who makes contact by telephone to carry out an “assessment”, it is the same insurance company that sounds out a possible settlement, the lawyer and the court representative (procurador) are the insurance company’s, and we also know it at the end, because the same company always turns up when it comes to paying.
It is clear that the expert who would be challenged is never a partner of the defendant, nor has any stake in it, and in an objection it will never be proven that he has an indirect interest in the case, whether his colleague, whom he does not even know, wins or loses. But he does have an interest in ensuring that their common insurance company, which appointed him, does not have to pick up the bill, or at least pays as little as possible.
And this is the subtle expert scheming that we lawyers suffer day in, day out, in LOE cases (and under the former article 1591 of the Civil Code).
Any questions?