FlyerTalk Forums - View Single Post - Stolen Item from Luggage - Where to claim?
Old Apr 14, 2010 | 3:34 am
  #128  
Shona
 
Join Date: Oct 2007
Posts: 347
Originally Posted by jonnykanzen
From bad to worse...

Just realised a bottle of aftershave (new) has also been taken. Was I supposed to carry that on too?!

Spoke to BA (earlier today before I not iced the aftershave missing). They are adamant and are sticking by their T&C's. I told them that I've consulted my solicitor and the AUC (someone BA actually advised me to get in touch with) and they all confirmed in my favour and in line with the Montreal convention. BA really don't care and say it's up to me if I want to go to small claims.

Also spoke to my travel insurance and maximum I will get out of them is £350....so either way I'm still out of pocket.

As others have mentioned this may be more about your stamina and tenacity ( and your own calculation of your worth of your own time) than substantial doubts on the merit of your legal position.

I think you percieve you have two options. You may have a third ( at least)

1)You could claim against the travel insurer ( will they pay-that is still not clear?).

2) You could claim against BA.

However you have a third option-you claim against both.

If you claim against the travel insurer-and obtain a settlement according to the policy terms-this may still leave you with a shortfall (effectively an uninsured loss) of say £200

The travel insurer-will obtain a right of subrogation to the extent of the possibility of recovering their right of recovery in respect of your insured loss. ( They may even have an expess assignment of those rights of recovery).

However -the travel insurer-having paid out to you-what will they do?

Will they exercise that right of recovery? ( i.e will they take proceedings against BA/twist their arm in some fashion that you cannot?). Will they just write-off that recovery?

You are still left with an uninsured loss of say £200. You may still wish to pursue BA for that loss.

However you could claim for your entire loss-say £550-the travel insurer would effectively need to sue in your name anyway.

If you did that the travel insurer might expect you to account to them -to the extent of their insured loss payout-say £350.

Therefore the travel insurer would expect you to account to them-for something they might have been expecting to write -off anyway ( and without any investment of time/cost/risk on their part).

You could negotiate with the travel insurer-in these circumstances-in that you would effectively be acting as their recovery agent-by acting in you own name and doing the work yourself.

You could-for example-say to the travel insurer-I will pursue the entire loss but as I am doing the work and risk here-I wish that to be reflected.

Therefore say if you do recover the £350 insured loss-(as part of an overall recovery from BA of £550-perhaps you should only be expected to hand over 50% of the £350 ( or 20% or whatever percentage you negotiate) to you Mr Insurer.

The travel insurer gets something they might not otherwise expect to receive-and you also receive some contribution to your effort to that (joint) recovery exercise.

The overall risk as far as you are concerned is that-the whole process is drawn out a bit-as the insurance claim will be processed-and all the while your focus and interest may wane.
Shona is offline