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COVID

Business interruption test case update

August 24, 2021 by insuranceca

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Business interruption test case update

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News release

Tuesday, 24 August 2021

The Insurance Council of Australia notes the Federal Court of Australia has today ordered the second business interruption test case hearing will commence one week later than previously scheduled.

The order to vacate the 30 August 2021 hearing and reschedule to 6 September 2021 – 15 September 2021 was made in light of the difficulties that some policyholders have had in obtaining verified government data and expert evidence concerning the location and prevalence of COVID-19 outbreaks.

Insurers look forward to the second test case taking place as soon as possible and have worked hard to ensure readiness for the hearing.

It is not anticipated that this postponement will impact on the timeframe for any appeal, which has been scheduled to be heard by the Full Court of the Federal Court in November 2021.

The insurance industry’s intention throughout both test cases has been to maximise the certainty to be provided on business interruption policy matters for the benefit of the industry and policyholders alike.

At today’s hearing the court agreed with the proposal of the insurers and policyholders that the 6 September 2021 hearing proceed on the basis of the available evidence. However, the policyholders participating in the second test case will have the ability to present certain additional factual and expert evidence relevant to their claims if it later becomes available.

The second test case consists of nine small business claims from a range of business sectors and locations, lodged with the Australian Financial Complaints Authority as part of its dispute resolution process.

The court’s determinations in this and the first test case will provide clarity and guidance for all insurers and policyholders, not just those involved in the test cases.

For more information please visit insurancecouncil.com.au/bi-test-cases. 

Comment attributable to Andrew Hall, CEO Insurance Council of Australia:

Insurers acknowledge that this extra week gives policy holders more time to obtain verified State Government data and expert evidence for their cases while allowing the hearing to proceed on the basis of the available evidence.

We thank policyholders involved in this second test case for their time and patience in this important test case process.

Insurance Council members are committed to applying the courts’ rulings in both this and the first test case in an efficient, transparent, and consistent way when determining business interruption claims.

We encourage all business interruption policyholders who believe they may have a claim and have not already done so, to lodge a claim and gather and keep all necessary documents in support of it.

 

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Critical repair works to continue during South Australia lockdown

July 21, 2021 by Shannon White

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Critical repair works to continue during South Australia lockdown

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News release

Wednesday, 21 July 2021

Residents of South Australia should continue to make insurance claims for any damage to buildings or motor vehicles during the current seven-day lockdown, the Insurance Council of Australia said today. 

In support of the Level 5 Restrictions, insurers will cease all non-critical building repairs until restrictions ease.

Critical building repairs are permitted to continue under the restrictions and these include:

  • Emergency make-safes (these occur following damage and are necessary to ensure the property and residents are safe and secure) 
  • Necessary repairs to ensure a home is habitable (eg, repairing a bathroom, kitchen or hot water system if necessary for the resident to remain in the home)
  • Necessary repairs that are required to mitigate the risk of further damage (ie completing a roof repair so the building is not exposed to significant additional damage from wind and rain)
  • Critical repairs to damaged business premises if required to ensure the safety or security of the building (such as preventing the risk of theft or further significant damage)

In facilitating critical building repairs, insurers may also require assessors and engineers to attend sites, including to determine whether critical repairs are required. Insurance staff and contractors will use virtual inspections where possible and if required on-site will wear PPE and limit contact with residents.

Even during Covid restrictions, the repair of motor vehicles is necessary to support essential workers and emergency and health services, as well as essential travel for all residents. 

For hardship assistance during lockdowns, policyholders should contact their insurer who will have in place a range of flexible support options.

Comment attributable to Andrew Hall, CEO Insurance Council of Australia:

Accidents and damage will still occur during these lockdowns, so customers should not hesitate to contact their insurer if they are looking for assistance or to make a claim.

Insurers are working hard with suppliers to ensure we can continue important work on people’s claims, while also seeking to comply with these restrictions.

While we play an essential function, we are extremely mindful of the intent of the Government’s Level 5 Restrictions and where possible will limit movement of both staff and contractors.

Prior to these current restrictions a shortage of trades and goods and state border closures, on top of a number of natural disasters, have been impacting insurance repairs and remediation times for customers. 

Current lockdowns across the country are likely to exacerbate those issues, so insurers ask for patience and understanding from the community as they work to repair property and vehicles.

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Urgent repair works to continue during Sydney lockdown

July 20, 2021 by Shannon White

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Urgent repair works to continue during Sydney lockdown

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News release

Tuesday, 20 July 2021

Residents of Greater Sydney should continue to make insurance claims for any damage to buildings or motor vehicles during the current lockdown, the Insurance Council of Australia said today. 

The advice comes following confirmation by the State Government that urgent repairs are permitted to continue under the new Public Health Order. In support of the Order, insurers will cease all non-urgent home repairs until 31 July.

Urgent repairs to buildings that will continue include:

  • Emergency make-safes (these occur following damage and are necessary to ensure the property and residents are safe and secure) 
  • Necessary repairs to ensure a home is habitable (eg repairing a bathroom, kitchen or hot water system if necessary for the resident to remain in the home)
  • Necessary repairs that are required to mitigate the risk of further damage (ie completing a roof repair so the building is not exposed to significant additional damage from wind and rain)
  • Urgent repairs to damaged business premises if required to ensure the safety or security of the building (such as preventing the risk of theft or further significant damage)

In facilitating urgent building repairs, insurers may also require assessors and engineers to attend sites, including to determine whether urgent repairs are required. Insurance staff and contractors will use virtual inspections where possible and if required on-site will wear PPE and limit contact with residents.

In some circumstances, workers from outside the Fairfield, Canterbury Bankstown and Liverpool LGAs may be required to enter those areas to conduct urgent repairs, however insurers will try to minimise these occurrences by utilising workers living within those LGAs wherever possible. 

Even during Covid restrictions, the repair of motor vehicles is necessary to support essential workers and emergency and health services, as well as essential travel for all residents. 

Insurers have been advised that motor vehicle repairs are permitted to continue and that those living within the Fairfield, Canterbury Bankstown and Liverpool LGAs undertaking this work are authorised workers able to leave these LGAs to conduct this essential function. Residents in those LGAs are also permitted to leave their LGA for urgent repairs to their vehicle.

For hardship assistance during lockdowns, policyholders should contact their insurer who will have in place a range of flexible support options.

Comment attributable to Andrew Hall, CEO Insurance Council of Australia:

Accidents and damage will still occur during these lockdowns, so customers should not hesitate to contact their insurer if they are looking for assistance or to make a claim.

Insurers are working hard with suppliers to ensure we can continue important work on people’s claims, while also seeking to comply with these restrictions.

While we play an essential function, we are extremely mindful of the intent of the Government’s Health Order and where possible will limit movement of staff and contractors both into and out of impacted LGAs and across Greater Sydney.

Prior to these current restrictions a shortage of trades and goods and state border closures, on top of a number of natural disasters such as the recent NSW floods, have been impacting insurance repairs and remediation times for customers. 

This two week period will only exacerbate those issues, so insurers ask for patience and understanding from the community as they work to repair property and vehicles.

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Insurers welcome COVID indemnity announcement

July 2, 2021 by insuranceca

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Insurers welcome COVID indemnity announcement

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News release

The Insurance Council of Australia (ICA) has welcomed today’s announcement by Minister for Health Greg Hunt that the Commonwealth is establishing a COVID-19 Vaccine Claim Scheme for healthcare professionals administering the vaccines.

Today’s announcement provides certainty for those participating in the crucially important vaccine rollout and should engender further community confidence in the vaccine program.

Medical indemnity insurers have been an important voice in discussions of this issue for some time and have appreciated the constructive way in which Minister Hunt and his Department have engaged on this issue.

Insurers had been concerned that those involved in administering and distributing the vaccine and managing any reactions could have been exposed to an increase in claims given the subjective nature of judgments that doctors and staff have to make in an evolving environment.

The announcement of the COVID-19 Vaccine Claim Scheme is an important step in providing the assurance medical indemnity insurers and their policyholders have been seeking.

Comment attributable to Andrew Hall, CEO Insurance Council of Australia:

The COVID-19 mass vaccination program is a large and complex undertaking in a rapidly evolving environment. 

The ICA has been working with its members in the healthcare indemnity sector, Government and other stakeholders to ensure that risks for professionals involved in the administration of the vaccine are identified and addressed. 

Insurers recognise their important role in supporting practitioners who are on the front line of delivering this vitally important program for all Australians.

We congratulate the Government and Minister Hunt in particular on today’s welcome announcement.

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Business insurance customers should submit BI claims

June 26, 2021 by insuranceca

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Business insurance customers should submit BI claims

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News release

Saturday, 26 June 2021

The Insurance Council of Australia (ICA) today urged small businesses to submit a claim against their business interruption (BI) cover through their broker or insurer if they believe their policy responds. 

This call follows the High Court’s decision yesterday not to allow an application to appeal the judgment of the NSW Court of Appeal in the first BI test case.

The Court of Appeal’s November 2020 judgment found that references in insurance policies to a now-superseded Act of Parliament did not allow insurers to deny BI claims made because of the COVID-19 pandemic. Finalisation of many claims may still not take place until further clarity is provided by a second test case, underway now in the Federal Court.

This second text case will determine the meaning of policy wordings around disease definition, COVID outbreak proximity, the impact of government mandates, and other policy wording matters.

However this does not prevent policy holders from lodging a claim now.

Some class action law firms have claimed yesterday’s decision only has implications for customers of the two insurers involved in the first test case, Hollard and HDI, and that customers of other insurers will have to pursue their own legal remedies.

However Insurance Council members have previously committed to applying the rulings of the courts in the BI test cases in a consistent way when assessing all claims, and the ICA is currently advertising in national newspapers and online providing guidance onhow to make a BI claim.

If a claim is denied by an insurer, the Australian Financial Complaints Authority (AFCA) can make binding decisions on claims up to $1.085 million free of charge for policyholders, in contrast to the substantial fees sought by class action funders and lawyers.

Further guidance on making a BI claim is available on the AFCA and ASIC websites, and general information on this issue can be found on the ICA’s website.

Quote attributable to ICA CEO Andrew Hall:

The test case process has been utilised to provide certainty across a range of questions, and with each final decision by the courts, insurers will commence assessing claims that will respond to each ruling.

It is the position of the ICA that policyholders affected by COVID shutdowns are entitled to lodge a claim with their broker or insurer against their business interruption cover.

As we are also nearing the end of the financial year, lodging a claim in this matter can be complex and requires gathering  evidence – that’s why policyholders should start that process now.

While many claims will have to wait until the outcome of the second test case, lodging a claim now means that once that outcome is known a resolution can take place quickly, providing certainty for policyholders.

Useful links

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Statement on Special Leave application

June 25, 2021 by Shannon White

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Statement on Special Leave application

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News release

Friday, 25 June 2021

The Insurance Council of Australia (ICA) today acknowledged the High Court’s decision to deny special leave to appeal the NSW Court of Appeal’s judgment around the interpretation of pandemic exclusions in some business interruption policies. 

Insurers will respond to affected customers who have lodged business interruption claims on a case-by case basis, however the vast majority of claims will not be able to be finalised until further clarity is provided by the second test case. 

Insurers commenced a second test case in the Federal Court of Australia in February 2021 to test the application of further issues of pandemic coverage in business interruption policies. 

The second test case will determine the meaning of policy wordings in relation to the definition of a disease, proximity of an outbreak to a business, and prevention of access to premises due to a government mandate, as well as policies that contain a hybrid of these type of wordings. 

The industry will meet the costs of policyholders in the second test case, as it did in the first test case and will for any appeal. It is anticipated that the trial of the second test case will take place in late August 2021. 

Policyholders should contact their broker or insurer directly if they require clarity on their particular circumstances and should gather and keep any evidence and documents to support any potential claim they may make. 

Quote attributable to Andrew Hall, CEO, Insurance Council of Australia: 

The Insurance Council acknowledges today’s ruling from the High Court.  

While we are disappointed, this decision on the first test case provides us with certainty and allows the industry to focus on the issues to be resolved through the second test case underway in the Federal Court of Australia.  

We encourage policy holders who are considering lodging a claim to contact their broker or insurer, and make sure they are keeping all the necessary paperwork. 

Once finalised, insurers are committed to applying the courts’ decisions in both test cases in an efficient, transparent, and consistent way when assessing claims. 

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