Attwood Marshall Lawyers Commercial Litigation Associate Georgia Taylor discusses on Radio 4CRB how to hold your insurance provider accountable when you make a claim so that you get the most out of your policy and are covered for everything you are entitled to.
Introduction
Insurance is necessary to provide us with the cover we want to protect ourselves, our businesses, and our property. However, there are many cases where our insurance policy does not protect us as we had hoped.
An insurance product now under the legal microscope is Business Interruption Insurance. With so many businesses impacted by COVID-19, and the ongoing government lockdown directives which unfortunately have no end in sight, there are many businesses that are depending on their insurance to help them navigate this extremely challenging time. Unfortunately, yet another curve ball has been thrown at businesses who expected their insurance policy cover to protect them. Business owners who hold business interruption insurance policies have been met with rejection from their insurers when trying to make a claim. From the construction industry, to hospitality and retail, almost every type of business across every industry has been impacted.
Business Interruption Insurance – under the legal microscope – is COVID covered?
With any insurance policy, inclusions and exclusions are outlined in the product disclosure statement. Most astute business owners generally hold Business Interruption Insurance as part of their ordinary business insurance packages. This product is designed to cover a business for interruptions that may occur during the course of their trade.
This type of cover may come into effect and be depended on during natural disasters such as floods or cyclones. In the current climate, business owners are depending on their business interruption insurance to cover them for the disruption caused by the COVID-19 pandemic.
Unfortunately, there is a journey ahead for many policy holders who are now faced with a long wait for the Courts to determine if their policies will cover the pandemic.
The insurers have said that within their policies is an exclusion for pandemics, epidemics, viral diseases etc. Accordingly, business losses caused by the lockdowns were not recoverable under most Business Interruption Insurance policies. In November 2020, the New South Wales Court of Appeal delivered a unanimous decision in the case of HDI Global Specialty SE & Anor v Wonkana No 3 Pty Ltd (2020) which was a test case brought before the Court to decide if insurers could rely on dated exclusions which referenced the now repealed Quarantine Act 1908 (Cth) (and subsequent amendments). It was decided that insurers could not rely on an exclusion which referenced the “Quarantine Act 1908 (Cth) (and subsequent amendments)”, because it was considered unreasonable that an insured entity might assume that the Quarantine Act 1908 (Cth) (and subsequent amendments) would extend to the new legislation, the Biosecurity Act 2015 (Cth). Relevantly, COVID-19 is a human biosecurity emergency under the Biosecurity Act 2015 (Cth) but it is not classified as any disease under the Quarantine Act 1908 (Cth) because the Quarantine Act 1908 (Cth) has been repealed. Although the first test case was decided by the NSW Court of Appeal, this decision is relevant to all Australian claims, regardless of which state a business is located. This case has now bene through to the High Court of Australia who delivered a decision in line with that of the Court of Appeal.
If the insurers were intending to rely on their fine print, the policy holders are holding them to account.
Business owners stood up to their insurance companies and argued that the policy was referring to legislation that no longer exists, couldn’t apply and therefore the exclusion should not apply to their cover.
These test cases are scheduled to continue to play out in the Court with the second test case to be heard in the Federal Court in September 2021, and any appeal of the decision made in the second test case to be dealt with by the Full Court of the Federal Court by November 2021.
We will be sending out regular updates whenever anything changes, and the Court makes determinations on these policies. If anyone would like to receive updates, please call our team on 1800 621 071 and we will email you updates as they happen.
Click here to download our COVID-19 Business Interruption Insurance Fact Sheet
Insurance for natural disasters – flood, fire and theft
We’ve seen significant natural disasters over recent years where there has been widespread flooding and other extreme weather events that have caused devastating losses across Australia.
This year alone Western Sydney and the Far North Coast experienced widespread flooding and heavy rain, with over 18,000 people evacuated from their homes.
Between 2019 and 2020 it is estimated that 10,000 buildings were lost to the bushfire season.
In 2011, following some of Queensland and Victoria’s most significant floods and cyclones, there was an inquiry into flood insurance and related matters.
It was not the extreme weather events themselves that stimulated the inquiry, but the absence of flood insurance for many policyholders. The issues around consumers’ access to information and documentation in a form that they could readily understand was raised. One of the main complaints that emerged after the floods was the fact that many people thought they were insured for flood but found that the wording of their policies actually excluded their claims in certain circumstances.
Insurance is a complex product, but is generally purchased over the phone or internet, or through direct sales. Purchasing insurance is made easy, however consumers fail to get “real advice” as part of the process about how suitable the product is and exactly what is included and excluded under the policy. The devil is in the detail.
The cost of natural disasters is only expected to rise due to climate change. It is estimated that natural disasters already cost Australians over $13 billion every year. These costs will continue to escalate over coming years as the frequency and intensity of natural disasters also increase.
Every part of the Australian community is impacted by climate change and natural disasters and carries that cost one way or another as taxpayers, property owners, consumers, workers, or businesses.
We know that bushfires, cyclones, drought, floods, and storms are inevitable in Australia. The risk of these events will continue to rise, and it is important to get the right advice about the different types of insurance you take out, to make sure that these products will protect you, your property, and your business, in the event these events happen.
Product disclosure statements can be confusing – become familiar with the fine print & ‘exclusions’
In most cases people don’t fully understand what they are “not” covered for, until the time comes that they need to make a claim.
Many people may have home and contents cover that states they are covered for storm damage, but it is not understood that “storm damage” doesn’t include flood damage. Insurers use all sorts of terms and tactics and it can be difficult to interpret what is covered and what is not covered.
Then there is also the issue of insurance affordability. Generally, when you want to cover yourself for certain risks or events, you need to add on “extra” cover options to your policy. Once you start adding these extra protections, premiums tend to become extremely expensive. When we look back at the 2011 floods and the inquiry into flood insurance, it showed us that there was an underlying problem for the community around the availability and affordability of flood insurance. Some policy holders simply couldn’t obtain flood cover, and among those that were able to access the cover, there were many people who couldn’t afford the high price of the policy.
Fast forward to now and many people are faced with the same challenges. If you live in an area, or operate a business in an area, that is considered a high risk due to previous flood or fire events, you can expect your premium to cost a pretty penny.
Whenever taking out insurance, it is always best to discuss your specific needs with a reputable insurance broker who can identify the most suitable policy for you, explain all the inclusions and exclusions that will apply, whilst obtaining the best price possible.
What happens if my insurance claim is denied?
There are a couple options available if you have submitted an insurance claim and had it denied by your insurer. The Australian Financial Complaints Authority (AFCA) handle complaints and contests from consumers who are unhappy with a decision made by their insurer. AFCA will guide you through their easy and consumer-driven process to try to obtain the outcome you want. If you are not happy with that outcome, it is at this stage that you should obtain independent legal advice for an experienced insurance dispute lawyer.
It is important to note that there are time constraints that will apply to your dispute, dependent on your policy. It is important to refer to your insurance policy to understand what time limitations may apply to your situation when you are making a claim and disputing any decisions about your claim and seek legal advice if you are unsure.
Tips for dealing with insurance companies and trying to make a claim
- It is imperative to report any damage or incident immediately to your insurer. The insurer will usually send out an assessor or request necessary information to try to process your claim.
- Make sure you are familiar with your policy and product disclosure statement and what your entitlements are under your policy. If you are unsure, there are insurance brokers that can assist you and provide you with advice about what you are covered for.
- Collect as much documentary evidence as you can to support your claim. Take photos or video footage of any damage to your property or belongings.
- Obtain independent quotes or advice from reputable tradespeople. Don’t just go with whoever the insurer wants to send out or what you may be offered over the phone.
- Keep written or typed notes of all your contact and discussions with the insurance company.
- Don’t accept what the claims officer tells you in relation to your policy. If they tell you that your policy does not include certain cover, don’t be afraid to challenge them.
- Finally, don’t be afraid to negotiate with the insurance company if they undervalue your claim or offer you an amount that is less than what you are expecting.
Attwood Marshall Lawyers want to help you protect your rights
Attwood Marshall Lawyers Commercial Litigation team have extensive experience in resolving disputes against insurance companies. We want to help you resolve your dispute and reduce some of the stress in your life. If you have had an insurance claim denied, contact our team at the earliest opportunity to obtain preliminary advice in relation to your rights. We will be able to advise you on your reasonable prospects of succeeding in your claim.
We’re here to help you get everything you are entitled to under your insurance policy. Contact Commercial Litigation Department Manager Amanda Heather on direct line 07 5506 8245, email aheather@attwoodmarshall.com.au, or free call 1800 621 071 at any time.
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