Reviewed by Rebecca Scott
Insurance Claims in New Zealand aims to bring a fresh, approachable perspective to scholarship on insurance law. It delivers on its promise, which is to provide guidance for anyone dealing with contentious insurance claims. This up-to-date text covers insurance law from the business end – the business of claims.
Practical, New Zealand-focused texts will always have an important place on a lawyer’s bookshelf. Insurance Claims in New Zealand is an excellent starting point for aspiring insurance lawyers seeking an accessible introduction to the area. Its target audience, which includes loss adjusters and claims handlers, will find it useful.
The Canterbury earthquakes have changed the insurance law landscape in New Zealand to some extent, perhaps bringing more practitioners into contact with insurance issues than ever before. Some previously untested wordings have been worked through, and the mechanics of how policies respond to multiple events have been refined.
The book incorporates the legal developments in New Zealand since the 2010 and 2011 Canterbury events, but the scope is much wider than earthquake claims. Very much tailored to the New Zealand market, the emphasis is on New Zealand cases.
The authors’ intention was to create something of a handbook. They have included a chapter on assessment of claims, with practical tips. They draw attention to important fundamentals: “It must never be assumed that an insured loss can be quantified without reading and considering the insurance policy.”
The authors offer their preferred interpretation where there may be conflicting viewpoints, or where cases have, in their view, been wrongly decided. There is some interesting critique of decisions, for example AMP General Insurance (NZ) Ltd v Hugo (2003) 12 ANZ Insurance Cases 76,618 which they say misses the point of s 11 of the Insurance Law Reform Act 1977.
One theme that the authors return to often is the indemnity principle, which they doubt is an overarching rule of insurance law. Their thesis is that the words of the policy have primacy, even if this results in a profit to the insured. They question the Supreme Court’s acceptance in Ridgecrest NZ Ltd v IAG New Zealand Ltd [2015] 1 NZLR 40 that the indemnity principle prevents the insured recovering more than the replacement value of the building.
There is some interesting debate to be had here. From an insurer’s perspective, there is no logic in paying for damage that will never be separately repaired because it is overtaken by later full destruction. There cannot be double counting of unrepaired damage.
Delay in settling claims, and possible remedies if this results from bad faith or intransigence by insurers, is discussed. The authors point to the High Court’s decision in Domenico Trustee Ltd v Tower Insurance Ltd [2015] NZHC 981 as an example of Courts finding against insurers where there have been delays. The Court of Appeal has since expressed reservations about whether Courts can make an election for a delaying insurer (Tower Insurance Ltd v Domenico Trustee Ltd [2015] NZCA 372). Users must take care to check for developments since publication in June 2015, as the law is moving quickly in this area.
Who can enforce policy obligations, and whether breach by one insured affects cover, can be important questions. There is a whole chapter on joint and composite insurance. This area saw developments in the 1980s and 1990s, but recent cases such as Crystal Imports [2015] NZCA 283 and New Zealand Fire Service Commission v Insurance Brokers Association of New Zealand Inc [2015] 18 ANZ Insurance Cases 62-066 show that issues around insuring multiple interests remain relevant.
The book is clearly and logically organised. The text is readable, the style modern.
Insurance Claims in New Zealand is a relatively slim volume. It does not address every potential claim complexity, but provides guidance on common issues and highlights key authorities. Specialists seeking detailed academic analysis should look elsewhere. For the bread and butter work of insurance claims, this is a helpful edition.
Insurance Claims in New Zealand, LexisNexis NZ Ltd, June 2015, 978-1-927248-26-3, 313 pages, paperback and e-book, $150 (GST included, p&h excluded).
Rebeccca Scott is an experienced litigator at boutique insurance litigation practice McElroys, specialising in insurance and professional liability claims.