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Newspaper article - Personal Finance published 14 May 2012

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Rise in rulings against insurers

14 May 2012
By Angelique Arde


Of the 9 827 complaints resolved by the office of the Ombudsman for Short-term Insurance last year, the ombudsman issued 10 final rulings against insurers.

Most complaints are resolved by way of mediation or non-binding recommendations, but a final ruling by the ombudsman is binding on the insurer.

In his annual report for 2011 released this week, Dennis Jooste, the newly appointed Ombudsman for Short-term Insurance, says this is a considerable increase over the three final rulings made in 2010.

However, Jooste says the ultimate goal of his office is not to have to make any final rulings, “but it is realistic to expect that on occasion an insurer may feel very strongly about an issue, thereby resulting in a final ruling”.

Jooste says the 10 rulings involved only three insurers (of the 51 insurers that are voluntary members of his office), which he says is indicative of the high level of acceptance that insurers have when considering the views of his office.

The ombudsman says the role of his office is to adjudicate disputes without bias in favour of any party or interest group, and so he measures the success of his office according to the number of complaints resolved.

Of all complaints resolved last year, in 35 percent of cases “some benefit” accrued to the policyholder, Jooste says. The rand value of this benefit amounted to almost R118 million.

Although there was only a slight (two percent) increase in the number of complaints received last year, there was a significant (16 percent) increase in the number of calls made to the ombudsman’s call centre: 122 080 last year versus 104 834 the previous year.

Jooste says this may indicate the growing public awareness of his office and the service that it offers. “However, it may also indicate growing consumer dissatisfaction (with the industry).”

Most complaints (51 percent) to the ombudsman’s office last year relate to motor vehicle insurance. The next highest category of complaints is homeowner’s insurance (21 percent), followed by householder’s insurance – or cover for contents (18 percent).

Last year, it took the ombudsman’s office an average of 223 days to resolve a complaint. This is a slight improvement on the turnaround time the previous year.

Rulings made by the ombudsman’s office last year show the importance of knowing your policy and your rights as a policyholder.

Non-disclosure and misrepresentation

When an insurer rejects your claim on the basis of your non-disclosure or misrepresentation, the onus is on the insurer to prove that you failed to disclose material information or misrepresented yourself. It must also prove that such information is important to assess the risk. If you did fail to disclose material information, the insurer may be entitled to reject the claim. The appropriate remedy is to void the policy from inception and refund your premiums.

The annual report of the Ombudsman for Short-term Insurance cites the case of a policyholder who submitted two claims for damages to his vehicle. The first claim was for damages to his car while parked in a parking lot. The second claim was due to an attempted hijacking in which he lost control of the car and crashed.

After processing the claims, the insurer declined liability on the basis that it had come to light that the policyholder had failed to advise the insurer of a prior conviction for driving under the influence of alcohol. The insurer also referred to the general conditions in the policy relating to material misrepresentation. It appeared from the documents submitted by the insurer that circumstantial evidence indicated that the policyholder was under the influence of alcohol during the second incident.

In his ruling, Brian Martin who was the ombud until January 2011, said that when an insurer seeks to rely on an exclusion as a basis to reject a claim, the onus falls on the insurer to prove that the loss falls within the ambit of the exclusion. And, when an insurer relies on an alleged non-disclosure or misrepresentation, it must prove that the information in question was not disclosed at inception of the policy.

The Short-term Insurance Act requires that before any alleged non-disclosure or misrepresentation on the part of the policyholder can be relied on by the insurer, it must be determined that such information was material to the assessment of the risk.

The current ombud, Dennis Jooste, says this is to give the policyholder protection when you make an innocent mis-statement or give minutely inaccurate information at inception of the policy and then the insurer later latches on to this and uses it to repudiate a claim.

In this case, Martin found that the insurer made unsupported allegations that the complainant failed to disclose or represent the true state of facts at inception of the risk. The insurer failed to prove this and did not seek to void the policy from inception.

The insurer could not produce any evidence that the complainant materially misrepresented that he was previously convicted for driving under the influence of alcohol. The insurer also failed to produce reliable evidence that the policyholder was under the influence of alcohol at the time of the incident.

The insurer retracted the reasons for rejecting the claim and settled it in full.

Inadmissible results

In terms of the policyholder protection rules (PPRs) an insurer may not compel you to undergo a polygraph or lie detector test.

The annual report of the Ombudsman for Short-term Insurance cites the case of a policyholder whose claim was rejected on the basis of fraud after he failed a lie detector test.

The policyholder had suffered a burglary at his home, but the insurer’s assessor was uneasy about the loss and specifically the items claimed for. The assessor then arranged for a layered voice analysis (LVA) test to be carried out on the insured with specific emphasis on certain items.

The test indicated deception relating to almost every item with which the assessor had a concern. At a subsequent meeting between the insured and the assessor, the insured’s wife admitted to discovering, shortly after the loss, that a laptop and digital camera with a bag and memory stick were in fact never stolen. When asked why she did not correct the claim when she had the opportunity to do so, the policyholder said his wife was “greedy” and had hoped “to be paid out extra”.

The PPRs provide that an insurer cannot compel you to undergo a polygraph or lie detector test. You may, however, willingly undergo such a test. But if you do, you have the right to have a legal representative or any other person present. You are also entitled to a recording of the questions put to you and the answers given. If you voluntarily undergo the test and fail it, the insurer is not entitled to repudiate the claim based on such failure.

The ombudsman’s office found that the assessor drew an inference from the LVA test which was void, inadmissible and of no standing in terms of the provisions of the PPRs.

The ombudsman’s office made a settlement proposal less the value of the goods that were not stolen (which constituted 15 percent of the claim) and less a 15 percent penalty fee – “as a mark of disapproval for the conduct of the insured”. But the insurer argued that a clear fraud had led to a forfeiture of the claim. It was not prepared to settle the claim and invited the ombudsman’s office to make a final ruling.

A final ruling was made ordering the insurer to indemnify the insured and pay the claim with interest at the rate of 15.5 percent a year from the date of the complaint.

The ombud, Dennis Jooste, says insurance policies typically carry a forfeiture clause that states that if you in any way inflate your claim or submit a fraudulent claim, the insurer has the right to reject your claim in full. In this case, there was no such clause in the policy. “This doesn’t mean to say that policyholders can get away with lying. We cannot allow fraud,” he says.

In this case, there was a genuine claim but it was inflated, and the inflated portion of it was disallowed.

Determining the value of loss

When you suffer a total loss and your insurer elects to indemnify you on a cash-in-lieu basis, it can not calculate the cost of replacement using methods that are out of step with industry norms to the detriment of the insured.

In his annual report, the ombudsman cites the case of a policyholder whose vehicle was involved in a collision in 2008 and declared a write-off. A claim was submitted to both the comprehensive insurer and the credit shortfall insurer.

The comprehensive insurer assessed the market value of the vehicle to be R620 000 and made the policyholder an offer on this figure less the excesses. But the policyholder’s credit shortfall insurer rejected the value placed on the vehicle, which had been bought for R950 000.

The policyholder approached the ombudsman, who took up the matter with the comprehensive insurer. It appeared that the method of indemnification provided by the comprehensive insurer was the market value on the date of loss.

The vehicle was a 2006 model and had a retail value of R792 200 at the date of loss. According to the Auto Dealers’ Guide, the industry standard for determining the values of vehicles, the new list price for the vehicle in 2008 was R864 000.

The comprehensive insurer, however, did not follow the Auto Dealers’ Guide. Instead it considered what similar vehicles on the market were selling for and determined that the vehicle could be replaced at a cost of R620 000.

The comprehensive insurer submitted to the ombudsman a circular dated June 10, 2010, which it sent to all its brokers advising them of the proposed new method of determining the market value of vehicles at the date of loss, with the intention of reducing reliance on the Auto Dealers’ Guide.

The ombudsman advised the comprehensive insurer that its method of determining market value was out of step with industry norms and standards. It was potentially highly prejudicial to insured persons and would lead to differing practices in the industry, which would result in confusion and unnecessary disputes.

The ombudsman said it was imperative that there be uniformity in the industry on the methodology used to determine indemnification for the insured in the event of a total loss. The methodology was especially important as it would affect the calculation of the credit shortfall.

The ombudsman conceded that an insurer was, as a general rule, entitled to elect whether to repair, replace or settle on a cash-in-lieu basis. However, once an insurer had elected to indemnify through a particular method they were stuck with that method and may not later change it to the detriment of the insured.

The ombudsman said once an insurer had elected to indemnify on a cash-in-lieu basis it could not rely upon the cost of replacement as representing the measure of indemnification.

The comprehensive insurer refused to change its view, so the ombudsman issued a final ruling against the insurer.

The insurer was ordered to recalculate the settlement using the industry standard – the Auto Dealers’ Guide – and that interest be paid to the insured at the rate of 15.5 percent a year from April 9, 2009.

The insurer agreed to abide by the findings of the ombudsman.

Keeping track of the fine print

Increasingly, insurers insist upon a tracking device as a prerequisite for vehicle cover. But not always. This condition may apply only to vehicles of a certain value, so it’s important to know your policy lest you waste money on a device and the cost of subscribing to a service that you don’t necessarily need.

The annual report of the Ombudsman for Short-Term Insurance cites the case of a policyholder whose claim for a stolen vehicle was rejected on the basis that he failed to comply with the insurer’s security requirements.

The policyholder admitted he had deactivated his tracking device to save the subscription costs. But in terms of his policy a tracking device was required only on vehicles valued at R250 000 or more, and his vehicle was valued at R202 000.

He also argued that even if his tracking device had been activated, it would not have helped the insurer recover the vehicle: his vehicle was lost in a hijacking in which his wife was held hostage by the hijackers until they were able to locate the tracking device. When they found it, they disposed of it and released her.

The insurer was ordered to pay the claim with interest at a rate of 15.5 percent a year from the date that the complaint was sent to the insurer.

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