Accountability 30 years on: Insurance Contracts Act Reform

The Insurance Contracts Act 1984 (Cth) since inception has effected major reform to the law in this field. One of Australia’s most frequently cited pieces of legislation, it has had a major impact upon the law and practice of insurance. Given the importance of insurance to domestic and commercial activity and its pivotal position as a mechanism to manage exposure to risk, it is not surprising that this legislation has been the subject of extensive analysis in the courts and in legal literature. Furthermore the Act has, arising out of a 2009 review, been significantly amended by the Insurance Contracts Amendment Act 2013 (Cth). The principal amendments introduced are: two-fold: the Insurance Contracts Act 1984 (Cth) has been amended so that a failure to comply with the duty of good faith is now a breach of the Act; and disclosure and misrepresentation provisions under the Insurance Contracts Act 1984 (Cth) are amended and clarified.

Insurance contract disclosure – an uncertain balance

This article canvasses recent case law adjudicating the uneasy disclosure balance between the interests of the insurer and the insured in the process of transacting an insurance contract. It examines also the consequences of non-disclosure and misrepresentation and whether the avowed legislative intent — that the liability of the insurer in respect of a claim is to be reduced to the amount that would place the insurer in the position it would have been had the non-disclosure or misrepresentation not occurred — is being achieved in practice. As there is no doubt as to who bears the onus of proof as to non-disclosure or misrepresentation it is surprising that insurers continue to flounder in this regard in relation to underwriting guidelines and adherence to them. The article reviews recent case law in this context and stresses that an insurer wishing to preserve its capacity to avoid liability on the basis that it would not have entered into a contract at all had the true situation been known to it must maintain detailed underwriting guidelines supported by consistent adherence to those guidelines. Recent case law also emphasises that the insurer must provide clear and cogent admissible evidence from appropriate personnel and officers of the company to discharge its onus.

Spontaneous and episodic volunteers: The legislative, insurance and risk management framework

Baby Boomers are a generation of life long association joiners, but following generations prefer spontaneous and episodic volunteering. This trend is apparent not only during natural disasters, but in most other spheres of volunteering. Legal liability for such volunteers is a growing concern, which unresolved, may dampen civic participation. We critically examine the current treatment of these liabilities through legislation, insurance and risk management.

Evidence in view: Matton Developments Pty Ltd v CGU Insurance Limited [2014] QSC 256

Rule 478 of the Uniform Civil Procedure Rules 1999 (Qld)(view by court) is silent as to the manner in which a court might be expected to exercise the discretion to order an inspection or demonstration under the rule and also as to the use which may be made of any inspection or demonstration ordered. The decision in Matton Developments Pty Ltd v CGU Insurance Limited [2014] QSC 256 provides guidance on both matters. This case provides some guidance on the circumstances in which a court may exercise its discretion to order a view or demonstration

The Benefits Planner: Improved Work Incentives in Social Security Disability Insurance Program - Changes Will Make Work More Attractive to SSDI Recipients

This newsletter will provide valuable information on how work for persons with disabilities effects government benefits, with an emphasis on the Supplemental Security Income (SSI) and Social Security Disability Insurance (SSDI) work incentives. Each newsletter will contribute to an ongoing dialogue on topics related to benefits and work.

Impact of dental insurance on adults’ oral health care in Tehran, Iran.

The aim of the present study was to determine relationships between insurance status and utilization of oral health care and its characteristics and to identify factors related to insured patients’ selection of dental clinic or dentist. The study was based on cross-sectional data obtained through phone interviews. The target population included adults in the city of Tehran. Using a two-stage stratified random technique, 3,200 seven-digit numbers resembling real phone numbers were drawn; when calling, 1,669 numbers were unavailable (busy, no answer, fax, line blocked). Of the 1,531 subjects who answered the phone call, 224 were outside the target age (under 18), and 221 refused to respond, leaving 1,086 subjects in the final sample. The interviews were carried out using a structured questionnaire and covered characteristics of dental visits, the respondent’s reason for selecting a particular dentist or clinic and demographic and socio-economic background (gender, age, level of education, income, and insurance status). Data analysis included the Chi-square test, ANOVA, and logistic regression and the corresponding odds ratios (OR). Of all the 1,086 respondents, 57% were women, 62% were under age 35, 46% had a medium and 34% a high level of education, 13% were under the poverty line, and 70% had insurance coverage; 64% with the public, and 6% with a commercial insurance. Having insurance coverage was more likely for women (OR=1.5), for those in the oldest age group (OR=2.0), and for those with a high level of education (OR=2.5). Of those with dental insurance, 54% reported having had a dental visit within the past 12 months ; more often by those with commercial insurance in comparison with public (65% vs. 53% p<0.001). Check-up as the reason for the most recent visit occurred most frequently among those with commercial insurance (28%) compared with those having public insurance (16%) or being non-insured (13%) (p<0.001). Having had two or more dental visits within the past 12 months was most common among insured respondents, when compared with the non-insured (31% vs. 22% p=0.01). The non-insured respondents reported tooth extractions almost twice as frequently as did the insured ones (p<0.001). Of the 726 insured subjects, 60% selected fully out-of-pocket-paid services (FOP), and 53% were unaware of their insurance benefits. Of those who selected FOP, good interpersonal aspects (OR=4.6), being unaware of dental insurance benefits (OR=4.6), and good technical aspects (OR=2.3) as a reason had greater odds of selecting FOP. The present study revealed that dental insurance was positively related to demand for oral health care as well as to utilization of services, but to the latter with a minor extent. Among insured respondents, despite their opportunity to use fully or highly subsidized oral health care services, good interpersonal relationship and high quality of services were the most important factors when an insured patient selected a dentist or a clinic. The present findings indicate a clear need to modify dental insurance systems in Iran to facilitate optimal use of oral health care services to maximize the oral health of the population. A special emphasis in the insurance schemes should be focused on preventive care.

Learning from insurance data: Injuries to other road users in motorcyclist at-fault crashes

In multi-vehicle motorcycle crashes, the motorcycle rider is less likely to be at-fault but more commonly severely injured than the other road user. Therefore, not surprisingly, crashes in which motorcycle riders are at-fault and particularly the injuries to the other road users in these crashes have received little research attention. This paper aims to address this gap in the literature by investigating the factors influencing the severity of injury to other road users in motorcyclist-at-fault crashes. Five years of data from Queensland, Australia, were obtained from a database of claims against the compulsory third party (CTP) injury insurance of the at-fault motorcyclists. Analysis of the data using an ordered probit model shows higher injury severity for crashes involving young (under 25) and older (60+) at-fault motorcyclists. Among the not at-fault road users, the young, old, and males were found to be more severely injured than others. Injuries to vehicle occupants were less severe than those to pillions. Crashes that occurred between vehicles traveling in opposite directions resulted in more severe injuries than those involving vehicles traveling in the same direction. While most existing studies have analyzed police reported crash data, this study used CTP insurance data. Comparison of results indicates the potential of using CTP insurance data as an alternative to police reported crash data for gaining a better understanding of risk factors for motorcycle crashes and injury severity.

25th Anniversary of the Linked Life Insurance Commemorative Medal

Obverse: Inscription. Reverse: The life insurance emblem, a house with family inside, shekel coin on the roof of the house.

Accounting for risk: The advent of capped conveyancing title insurance

Title insurance companies originating from America, have, in the past 15 years become part of the Australian conveyancing landscape. However for most residential freehold owners, their activities would be a mystery. A purchaser does not routinely obtain title insurance, with the companies presently focussing on servicing the mortgagee sector. While the lack of penetration in the residential purchaser market may be attributed to the consumer’s lack of knowledge, evidence from Ontario and New Zealand illustrates that title insurance is likely to become an additional cost in the conveyancing process in Australia. In this article we highlight the reasons why, and demonstrate how title insurers have, by working with the legal profession been able to subtly move the risk of responsibility for compensation for loss, (at least in the first instance) from the state to the insurer, but with the added benefit for the state and the conveyancing agents that the cost of the insurance is ultimately borne by the consumer. In New Zealand this development is being accelerated by the introduction of capped conveyancing title insurance. Whether title insurance will become part of the conveyancing process is no longer the relevant question for Australia, (it undoubtedly will), but the unknown issue is just how title insurance companies will work with conveyancing agents to infiltrate the market, and what response this infiltration will have in terms of the state’s view as to their continued role in the provision of assurance. We suggest that developments from New Zealand in relation to capped conveyancing insurance are likely to be replicated in Australia in the near future, and that the state’s role in providing an assurance fund will continue, though the state may seek to expand the areas in which the right to compensation is restricted.

Auditing design and innovation programmes within a multinational insurance provider

The financial services industry is key to the success of the Australian economy, however even established businesses need to continually push to innovate. At present, design is becoming widely accepted as means to innovate and many companies currently have design and innovation programmes. The goal of these programmes is to foster a design capability amongst staff members. However, little is known as to the impact of the innovation capabilities such design programmes claim to instil. Therefore, this paper seeks to investigate how a financial services firm is currently attempting to build a design capability amongst staff members. Using a case study approach the research team audited four design capability programmes currently being deployed by the case firm. The study highlights the strengths and weaknesses of current efforts by the firm and current barriers to achieving design capability. The implications of this paper include key insights for both academics and industry.

Directors and officers insurance – Recent critical issues in Australia and New Zealand

Directors and Officers Liability Insurance (“D&O insurance”) has grown and evolved rapidly over the past 80 years to assume an important position in most corporations’ corporate governance and risk management strategies. This article focuses upon certain topical matters of particular concern to directors and officers including the availability of defence costs where a D&O policy is subject to a statutory charge; the commercial desirability of stand-alone “A-side” coverage, being the cover provided directly to directors and officers for loss resulting from claims made against them for wrongful acts; the impact of fraud and/or dishonesty upon D&O cover; and disclosure of the nature and extent of D&O cover to the directors and officers themselves and to third parties – in the latter case such access frequently being necessary to determine the economic viability of pursuing a proposed action against a company and its directors and officers.

The Finnish Leadership Style in Transition - A Study of Leadership Criteria in the Insurance Business, 1997-2004 (summary section only)

The aim of the study was to explore the importance of evaluating leadership criteria in Finland at leader/subordinate levels of the insurance industry. The overall purpose of the thesis is tackled and analyzed from two different perspectives: - by examining the importance of the leadership criteria and style of Finnish insurance business leaders and their subordinates - by examining the opinions of insurance business leaders regarding leadership criteria in two culturally different countries: the US and Finland. This thesis consists of three published articles that scrutinise the focal phenomena both theoretically and empirically. The main results of the study do not lend support to the existence of a universal model of leadership criteria in the insurance business. As a matter of fact, the possible model seems to be based more on the special organizational and cultural circumstances of the country in question. The leadership criteria seem to be quite stable irrespective of the comparatively short research time period (3–5 years) and hierarchical level (subordinate/leader). Leaders have major difficulties in changing their leadership style. In fact, in order to bring about an efficient organizational change in the company you have to alternate the leader. The cultural dimensions (cooperation and monitoring) identified by Finnish subordinates were mostly in line with those of their managers, whilst emphasizing more the aspect of monitoring employees, which could be seen from their point of view as another element of managers’ optimizing/efficiency requirements. In Finnish surveys the strong emphasis on cooperation and mutual trust become apparent by both subordinates and managers. The basic problem is still how to emphasize and balance them in real life in such a way that both parties are happy to work together on a common basis. The American surveys suggests hypothetically that in a soft market period (buyer’s market) managers employ a more relationship-oriented leadership style and correspondingly adapt their leadership style to a more task-oriented approach in a hard market phase (seller’s market). In making business better Finnish insurance managers could probably concentrate more on task-oriented items such as reviewing, budgeting, monitoring and goal-orientation. The study also suggests that the social safety net of the European welfare state ideology has so far shielded the culture-specific sense of social responsibility of Finnish managers from the hazards of free competition and globalization.

Credit Default Swaps and Insurance: Against the Potts Opinion

Little attention has been given to the possibility that CDS transactions might be construed as insurance contracts in English law. This article challenges the widespread “Potts opinion”, which states that CDSs are not insurance, because they do not require the protection buyer to sustain a loss or to have an insurable interest in the subject matter. CDSs often do provide protection against loss that the buyer is exposed to; loss indemnity is not a necessary characterisation of an insurance contract; insurable interest does not form part of the definition of insurance, but is an additional requirement of valid insurance; and what matters is the substance not the form of the contract. The situation in the US and Australia is also briefly considered.