7 years ago we enclosed our succah porch with a proper roof that comes up with a cable and crank handle device etc., enclosed by the Trisei Cohen contractors. They’ve come back over the years to service our enclosed porch in times of need.
Last sunday night during the terrible winds storms our roof of the porch was blown off and up onto the building’s public roof (we live on the top floor). Damage was caused to our succah roof and a solar panel. We called Treisei Cohen to come over and they were great in coming over right away, helping support the roof and preventing any further damage.
At the time they said they’d be willing to go halfs on the making of a new roof and halfs on the damage to the solar panel to the neighbors. We said we thought that was fair and agreed. We asked our rav and he told us to call our insurance for our apt. mashkantah, and the next day a shamai came and concluded that they’d cover the costs of the new roof and damages to the solar panel, for up to 10,000 shekels.
When Trisei Cohen heard about this settlement they said they wanted the 10,000 to cover the job including the replacement of the solar panel. Are they entitled to this full claim of 10,000? when at first they had said halfs when there was no certainty of any claim payment that might be made? Trisei Cohen has always been accomodating in the past. What is the din and how should we proceed? They plan to come tomorrow to do the job?
Answer:
Poskim discuss the question of a person who caused damage to an item that was insured. Is the damager liable to pay for the damage, in view of the fact that the victim is covered by insurance, and suffers no loss? This question is the subject of a dispute among authorities.
However, even those authorities who obligate the payment of damages, irrespective of the victim’s insurance policy, might concede that when somebody makes a contractual agreement to compensate somebody else for a particular damage, and it turns out that the damage is insured, the contractual agreement would not be binding. The reason for this would be that the contractual agreement was only made with the intention of compensating for the loss. Had the matter of the insurance payment been known, the contract would never have been made.
This would also seem to apply in the case of the question: The company would claim that it only agreed to special terms out of concern for the client’s personal losses, and in view of the insurance payment, it is no longer obligated to the special terms it offerred.
However, the viability of this claim depends on the reason for which the company originally made the offer, which the question does not state. Was the offer some sort of insurance towards clients, whereby the company agrees to repairs for lowered prices? Were they just being nice? Was it a prior contractual agreement they were under? The answer to this question may have an effect on the halachah (for instance, some maintain that in a rental agreement, the obligation of the tenant to cover damages is unaffected by the renter’s having insurance cover).
However, the general direction is that the company has a fair claim in requesting that the insurance payment go to cover the costs of repair.
Sources: Harei Besamin (tinyana 145) writes inconclusively concerning the insurance issue, whereas Or Sameach (Sechirus 18) and Har Tzvi (Tur, Choshen Mishpat 138) write that the damager would be liable. However, the proofs they mention have been deferred by later authorities. See Darkei Choshen (Silman), p. 176; Rabbi Yosef Fried, in Umkah De-Dina 1 (5763), p. 146.
