News

July 21, 2017

The Good, the Bad & the Ugly: 100 cases every policyholder needs to know. #2 (The Ugly). Kosmar Villa Holidays plc

Welcome to the latest in the series of blogs from Fenchurch Law: 100 cases every policyholder needs to know. An opinionated and practical guide to the most important insurance decisions relating to the London / English insurance markets, all looked at from a pro-policyholder perspective.

Some cases are correctly decided and positive for policyholders. We celebrate those cases as The Good.

Some cases are, in our view, bad for policyholders, wrongly decided, and in need of being overturned. We highlight those decisions as The Bad.

Other cases are bad for policyholders but seem (even to our policyholder-tinted eyes) to be correctly decided. Those are cases that can trip up even the most honest policyholder with the most genuine claim. We put the hazard lights on those cases as The Ugly.

At Fenchurch Law we love the insurance market. But we love policyholders just a little bit more.

#2 (The Ugly)

Kosmar Villa Holidays plc -v- Trustees of Syndicate 1243 [2008] EWCA Civ 147

The issue in Kosmar Villa Holidays plc was whether an insurer’s conduct in investigating a claim prevented it from subsequently relying on a breach of a condition precedent to avoid liability.

The policyholder, a tour operator, Kosmar, made a claim under its public liability insurance in respect of injuries suffered by an individual who was paralysed after diving into the shallow end of a swimming pool at apartments in Greece operated by Kosmar.

In breach of a condition precedent requiring it to notify the insurer immediately after the occurrence of any injury, Kosmar did not do so for a year.

Once notified, the insurer did not immediately deny liability for breach of condition precedent but sought further information about the accident.

The Court of Appeal had to consider whether in dealing with the claim in this way, without expressly reserving its position or denying liability, there had been a waiver, either by election or estoppel, that meant that the insurer was no longer able to decline indemnity because of the late notification.

The Court found that waiver by election had no application to a breach of a procedural condition precedent. However, where, through its handling of a claim, an insurer made an unequivocal representation that it accepted liability, or would not rely on a breach of a condition precedent, and where there had been detrimental reliance by the policyholder, the doctrine of estoppel would protect the policyholder.

On the facts, there had been no unequivocal communication by the insurer and insufficient reliance or detriment on the part of Kosmar. It was not therefore inequitable for the insurer to rely on Kosmar’s breach of the condition precedent to decline indemnity.

In its judgment, the Court explored the tension between an insurer’s need to have sufficient time to investigate claims and the insured’s need to know where it stands as regards policy coverage. On one hand, insurers were not to be encouraged to repudiate claims or to reserve their rights without asking questions about the claim simply to avoid being taken to have waived their rights in respect of a breach of a condition precedent. To do so would be to push insurers into an over-hasty reliance on their procedural rights. On the other hand, insurers were not entitled to give the impression that they were treating the claim as covered without running the risk of having waived their right to avoid the policy.

The message for policyholders is that, in the absence of an express communication to that effect, it is not safe to assume from conduct alone that an insurer has waived a breach of a procedural condition precedent.

July 19, 2017

Fenchurch Law continues expansion of insurance claims disputes capability with Hunter appointment

Fenchurch Law, the leading UK firm working exclusively for policyholders and brokers on complex insurance disputes, has further expanded its team of specialist claims dispute lawyers with the appointment of Tom Hunter as an associate.

Tom joins the Fenchurch Law team with experience in financial lines claims defence work and coverage issues including advising on professional indemnity, D&O, E&O and banker’s blanket bond claims. In addition to supporting clients of the firm’s financial & commercial risks practice, he will also work on coverage disputes for clients of their professional risks and construction risks practices.

Managing Partner of Fenchurch Law, David Pryce said: “Tom’s appointment continues the expansion of our coverage dispute capabilities. His experience and knowledge of the financial lines space further strengthens our ability to deliver exceptional service to policyholders and their brokers.”

Tom joins from Reynolds Porter Chamberlain (RPC) where he was an associate in their professional and financial risks group. During his time with RPC he was seconded to Arch Insurance Europe, where he worked within their third-party claims team.

July 14, 2017

Fenchurch Law receives “Gold” Award for client care experience

We’re delighted to announce that Fenchurch Law has received Investor in Customers’ Gold assessment award, recognising our commitment to client service.

Investor In Customers is an independent client experience agency which conducts client experience assessments, helps develop insights into client satisfaction, and awards annual accreditations.  This was our first assessment with them.

By measuring how well we understand and meet our clients’ needs, offer innovative and efficient service and create loyalty, Investor in Customers awarded us their highest ever first assessment score, and the sixth highest score ever awarded by IIC.  We also achieved IIC’s highest ever Net Promoter Score®.

Net Promoter Score® is a universal standard that measures the willingness of clients to recommend a company’s products or services to others, and our high score highlights how much we care about our clients’ satisfaction.

Managing Partner David Pryce commented that: “the recognition reflects how we prioritise client satisfaction at Fenchurch Law.  Improving outcomes for policyholders is our number one priority, and we are confident that the IIC assessment process will help us to improve every aspect of our service in the future”.

To learn more about the award and Investor in Customers, please visit: www.investorincustomers.com.

®Net Promoter, NPS, and Net Promoter Score are trademarks of Satmetrix Systems, Inc., Bain & Company, and Fred Reichheld