More support for legislative changes covering insurance non-disclosure

The Insurance Business New Zealand website reprorts that dispute resolution service Financial Services Complaints Ltd (FSCL) supports the Insurance and Savings Ombudsman’s view legislation is needed to deal with non-disclosure and insurance claims. The article is here.

The following are extracts from the article:

“We are a step behind overseas jurisdictions like Australia and the UK.

“I think the government should be taking a closer look because the current law is very old. There have been, I think, two Law Commission reports saying it’s time for the law to be looked at.”


Legal class action against Southern Response?

Wednesday’s Press has an article Southern Response class action ‘no win, no fee’ here.

The proposal, offered by law firm GCA lawyers, is for “disgruntled customers of a major earthquake claims-holder to join “no win, no fee”class action lawsuit.”

Sounds too good to be true (and potentially is). Click on the link to continue.

The following extract from the Press article is important and needs to be read very closely:

The law firm had now found an international backer for the potential $1billion class action case, Cameron said Tuesday.

This meant homeowners would not have to pay for anything to join the action and were not at risk to face adverse costs.

If the action was successful, the firm backing the claim and GCA would take up to 20 per cent of the amount awarded in damages.

The backer, international consortium Litigation Lending Services, would pay any upfront costs, including engineers and other experts, and would take on the risk of paying for adverse costs if the case was lost, he said.

Sounds good, but perhaps not as good as you might hope. If you lose it probably won’t be too bad in that all you will lose is time – maybe lots of it. There is a huge amount at stake so Southern Response and it’s backers will put up a fight. How much time can you afford?  Might it not be quicker to act independently? Will the money be worth it?

Should you win then you will still lose at lot of time, plus some of the money awarded by the court. Will you come out better off?

So far so good? What about some of the legal aspects? Maybe a bit of editorial oversight at the Press would have helped.

As has been mentioned frequently in the recent past New Zealand law does not cater for “class actions”. This is an American process that cannot just be imported into New Zealand because it sounds like a good idea. Class actions are quite focussed with a number of claimants having exactly the same issue – not quite the same as the varied issues faced by a collective of insurance claimants. Surprisingly this was not flagged in the article.

Also not flagged was the enthusiastic sizing of the damage payments that might be anticipated. According to the law firm mentioned:

“Each claimant could get anything from $10,000 to $30,000 a household for costs and an additional $25,000 to $50,000 for intangible costs such as stress.”

New Zealand courts have proven very reluctant to award large amounts of costs (damages), and then only as a consequence of really really big stuff-ups with no mitigating circumstances. How mitigating will an unprecedented disaster be?

For a more qualified analysis of the legal hurdles faced by proposals for class action, whether or not New Zealand insurers actually have a legal duty of utmost good faith towards policy holders, damages pay-outs, and more, there is an interesting article Proposed utmost good faith class action ‘misleading’ on the website Insurance Business New Zealand here.


Insurance Ombudsman wants insurance legislation to cover non-disclosure of information

The Insurance Business New Zealand website is reporting that the Insurance and Savings Ombudsman Karen Stevens supports legislation to better protect customers relating to information they disclose to an insurer. The following are extracts from the article (the full article is here).

Karen Stevens says legislation would mean an insurer could only avoid a policy where it could show the non-disclosure was deliberate.

Some cases are clear, where people deliberately leave out information they were asked to provide, knowing that it will go against them. However, in other cases, people accidentally leave out information because they have forgotten, or do not realise it is important.” The current law requires a consumer to disclose to an insurer all information a ‘prudent underwriter’ would consider important. But, said Stevens: “This is extremely difficult for consumers to understand. “My concern is that consumers don’t understand the consequences of not providing the information. However, she said: “Industry self-regulation is not enough on its own. We need to review the law and make changes to stop consumers getting themselves into a situation where they are uninsured and, in many cases, uninsurable in the future.”

Later in the article the views of Insurance Council of New Zealand CEO Tim Grafton are aired. These include the following:

“Tim Grafton, CEO of the Insurance Council of New Zealand, maintained the New Zealand was, in fact, one step ahead on the subject. So, we have no problem about addressing this issue – indeed we are ahead of the curve.  What is important here is insurers’ approach and the new Code addresses the issue.”

Tim Grafton’s comments are not, in my view, an accurate reflection of the situation. As mentioned in some detail on this blog (17th of March here) the Fair Insurance Code does not come close to the lead set elsewhere, especially the U.K., with regards to information disclosure. New Zealand legislation based upon the U.K.’s Consumer Insurance (Disclosure and Representations) Act 2012 is where we should start. Insurers in New Zealand have not shown themselves to be trustworthy, and are certainly quite unsuitable candidates for self regulation where so much is at stake for the general public. .

Fair Insurance Code 2016– where to now?

The revised Fair Insurance Code has yet to be ratified. It is to be considered at the ICNZ AGM some time this month and “there may be minor adjustments” to the Code. One wonders what “minor” might allow by way of changes. Will keep you posted on what is decided. In the meantime there will be a break at the Avonside Blog until early April, unless something interesting arises. .

Concerned IAG may cash you out?

Lawyer Duncan Webb from law firm Lane Neave has written an article My insurer wants to cash settle my claim … which covers the issues IAG customers might find themselves facing. The article is here.

It is very informative, practical and a worthwhile read even if IAG is not your insurer. IAG customers are likely to feel a bit more at ease for having read it.