Insurance Disputes:

Insurance is a neglected area of legal inquiry for parties which engage in litigation. What is often not contemplated by litigating individuals is the effect of the litigation on the insurance policy which may be connected somehow to the subject matter of the dispute. This is a very serious matter and can result in costly adverse consequences if the necessary insurance legal advice is not obtained from an insurance law litigator.

Ordinarily, insurance policies today will all contain what are known as “Exclusion Clauses”. This is usually common of all such policies, irrespective of the matter being insured or who the insurance is for. The exclusion clause is a provision in the contract of insurance which disclaims liability for a pay-out under the policy in the event that certain conditions are (or are not) met.

Many disputes concerning the liability of an insurance company to pay-out on an insurance policy essentially revolve around the interpretation of the exclusion clause. Unfortunately, there are many individuals who enter into insurance policies who do not take sufficient care or legal advice in considering the exclusion clauses in those insurance contracts. As a result, they therefore sign up for policies which may be quite narrow in terms of when they will provide insurance relief. Put simply, quite often, the policy will not respond to a claim, due to the wide ambit of an exclusion clause or clauses.  Disputes will almost certainly arise where a claim is made by the insured and denied by the insurer.

Some common exclusions clauses or legal principles may disclaim liability in the event that there has been a failure to disclose some material information prior to entering into the insurance policy. The insurer can then be in the position of asserting that this failure is unfair on them as (in broad terms), the insurer did not enter into the agreement with fully informed consent. The result is that the insurer may seek to use this as a basis for refusing to pay on a claim. Other common exclusions may involve allegations of fraud or professional negligence.

The insurer will have an implied obligation of good faith under the terms of the policy. This can sometimes be available in a counter-claim against the insurer who relies on an exclusion clause where that exclusion clause does not allow the insurer to deny a claim. The outcome of these considerations will of course rely on the outcome of factual and legal investigations. An insurance litigation lawyer should be approached by a person who is thinking of suing an insurance company so that proper insurance legal advice can be obtained first. Apart from these considerations, a case litigated under the principles of insurance law may very well require the interpretation of statutory provisions such as the:

• Insurance Act 1973 (Cth), and
• Insurance Contract s Act 1984 (Cth).

The benefit of retaining a solicitor who works in a diverse litigation team (as opposed to retaining a specialist who concentrates solely on insurance) may be that the diverse lawyer will have a host of resources available at hand to deal with the insurance dispute from a global general commercial litigation and/or civil litigation perspective. Principles of civil litigation as well as commercial litigation may apply to an insurance claim, or a claim dispute an insurance provider. Because insurance may apply to the individual, a trader or a company engaged in the delivery of a professional service, insurance disputes can take on a mixed civil and commercial character. The synergy of the Navado litigation team is perhaps its best asset, as this allows a cross-disciplinary attention to a particular legal problem.

If you require assistance with an insurance matter, you may wish to contact our firm by telephone on (02) 9233 4048 or email at info@navado.com.au and make an appointment to see one of our solicitors. 

This webpage (and any material or wording appearing on this webpage) is provided for general information purposes only and does not constitute any Legal Advice. It does not take into account your objectives, your instructions or all of the relevant facts and/or circumstances. Navado accepts no responsibility to any person who relies on the information provided on this website. We further refer you to our Disclaimer.