We have demonstrated experience and capability advising on litigated and non-litigated disability claims and policy disputes.
Our team has acted for a number of life and disability insurers, underwriting agencies and trustees of superannuation funds in the areas of:
- Total and Permanent Disability (TPD) & Total and Temporary Disability (TTD)
- Income protection
- Group life
- Critical illness
- Personal accident and sickness
- Travel insurance.
Our policy interpretation advice is backed by an excellent knowledge of the Insurance Contracts Act 1984 (Cth), including drafting entire policies and PDS statements for clients.
Our team’s focus is on providing high quality legal services through fully understanding developments in the evolving case law, responding to our insurer’s needs and providing reasoned strategic recommendations. We offer a unique combination of technical expertise, regulatory insight and commercial understanding through the multi-faceted experience of our team.
Our team’s experience includes:
- Investigating and advising on the legitimacy of contentious TPD and TTD claims, and defending and negotiating resolution of litigated TPD claims including:
- A plaintiff under a group policy who claimed a disc bulge was a new back injury rendering the plaintiff TPD based on the initial diagnosis, but our investigations revealed a long term degenerative condition and previous back injury triggering relevant exclusions.
- A plaintiff who allegedly suffered post-traumatic stress disorder and brought proceedings following a TPD claim declinature under a corporate travel policy. We successfully argued that the plaintiff did not suffer a diagnosable psychological injury and the injury was not in direct connection with a ‘catastrophic/critical event’ to trigger the relevant insuring clause.
- Acting for the trustee of an industry super fund in relation to litigated TPD claims by members of group life and income protection policies and successfully securing favourable indemnities for the client.
- Defending a TPD claim following the insurer’s decision to cease paying a permanent disability pension on the basis that the member’s medical condition had changed such that she no longer met the definition of being TPD. The evidence indicated that that member was a malingerer and expert evidence established that her reported symptoms were inconsistent with the objective medical evidence.
- Investigating and advising on the legitimacy of contentious death claims including negotiation of an early ‘walk away’ settlement in a death claim involving a claimant contracting a flesh-eating disease after suffering a laceration. The key issue was whether the cause of death arose from a pre-existing condition or a ‘sickness’ which was excluded by the terms of cover.
- Advising on policy response and causation issues (for example, whether it was an ‘event’ that ‘caused’ a heart attack while on an airplane), including pre-existing conditions and the application of section 47 of the Insurance Contracts Act 1984.
- Drafting a life insurer’s AFCA submissions for disputes relating to such issues as:
- Pre-existing conditions and the application of s47 of the ICA
- Classification of an injury as temporary/permanent
- The duration of the policy benefit/weekly benefit entitlement
- Leading an interactive Case Study presentation with the claims team of that insurer to provide insight on AFCA’s approach towards section 47 and to better inform the claims team when making claim decisions and drafting their own submissions.
- Advising on non-disclosure and misrepresentation issues (innocent and fraudulent), including providing advice regarding remedies available under section 29 of the Insurance Contracts Act 1984.
- Advising on rights and issues relating to subrogated recovery for the insurer in the event the plaintiff brings a third party claim.
- Preparing submissions to the Australian Financial Complaints Authority (AFCA), and previously to the Financial Ombudsman Service (FOS), in relation to TPD and income protection claims.
In conjunction with the above, we have a market leading, national personal injury practice which brings with it significant unparalleled depth, expertise and insight in relation to analysing, and approaching the defence of, the most complex of causation and medical issues directly relevant to life insurance claim issues. This extends to evolving claim areas such as mental health claims.
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It’s all in the construction: Zurich Australia Insurance Ltd v FKP Commercial Developments Pty Ltd  FCAFC 188
The Full Court of the Federal Court of Australia has dismissed an appeal by Zurich Australian Insurance Limited (Zurich).