In March 2020 most Insurance Companies rejected claims from businesses for LOSS OF GROSS PROFIT. Insurance Companies relied on unclear wordings in their Business Interruptions policies.
The FCA took a sample number of different policy wordings and insurance companies to court for clarification. The test cases involved complex issues, Infections and Notifiable Diseases, Prevention/Denial of Access and Public Authorities Closures. Clarification on Trend was also highlighted as insurance companies had used trend to reduce claims.
On 15/01/2021 the supreme court delivered its judgment and this substantially allowed the FCA appeal on behalf of policyholders. This means a number of similar policies in the wider market will now result in many more claims being successful and higher settlements.
Our experience as claims assessor’s means we can quickly evaluate the insurance policies you have and draft a claim that works for you and your business.
Our company J.Z. Fogel Insurance Assessors ( FCA 314000) have been dealing with insurance business interruption claims for over 50 years. We only act for the claimant, and always work on a no win no fee basis. We know how to present your claim to obtain the best possible settlement and on many occasions we can obtain for you a payment on account, that will assist your cash flow. If your business turnover has been adversely effected by COVID – 19 you could be due compensation. Many of you we are sure will want to discuss a potential claim so please contact us by phone or email to discuss how we can help you. Our fees are normally just a small percentage of any settlement.
Our experience as claims assessor’s means we can quickly evaluate the insurance policies you have and draft a claim that works for you and your business. No wading through documents, no analysing the small print – We will do the hard work on a No Win No Fee basis. The cost will be extracted out of the settlement. So if you’re looking for a claims assessor, you know who to contact. In most cases, we can negotiate a payment on account to help you get back on your feet.
The Supreme Court has today delivered its judgment in the Financial Conduct Authority’s (FCA)’s business interruption insurance test case.
The Supreme Court has substantially allowed the FCA’s appeal on behalf of policyholders. This completes the legal process for impacted policies and means that many thousands of policyholders will now have their claims for coronavirus-related business interruption losses paid.
Sheldon Mills, Executive Director, Consumers and Competition at the FCA, commented:
‘Coronavirus is causing substantial loss and distress to businesses and many are under immense financial strain to stay afloat. This test case involved complex legal issues. Our aim throughout this test case has been to get clarity for as wide a range of parties as possible, as quickly as possible, and today’s judgment decisively removes many of the roadblocks to claims by policyholders.
‘We will be working with insurers to ensure that they now move quickly to pay claims that the judgment says should be paid, making interim payments wherever possible. Insurers should also communicate directly and quickly with policyholders who have made claims affected by the judgment to explain next steps.
‘As we have recognised from the start of this case, tens of thousands of small firms and potentially hundreds of thousands of jobs are relying on this. We are grateful to the Supreme Court for delivering the judgment quickly. The speed with which it was reached reflects well on all parties.’
Many policyholders whose businesses were affected by the Coronavirus pandemic suffered significant losses, resulting in large numbers of claims under business interruption (BI) policies.
Most SME policies are focused on property damage and only have basic cover for BI as a consequence of property damage. But some policies also cover BI from other causes, in particular infectious or notifiable diseases (‘disease clauses’) and prevention of access and public authority closures or restrictions (‘prevention of access clauses’). In some cases, insurers have accepted liability under these policies. In other cases, insurers have disputed liability while policyholders considered that they had cover leading to widespread concern about the lack of clarity and certainty.
The FCA’s aim in bringing the test case was to urgently clarify key issues of contractual uncertainty for as many policyholders and insurers as possible. The FCA did this by selecting a representative sample of 21 types of policy issued by eight insurers. The FCA’s role was to put forward policyholders’ arguments to their best advantage in the public interest. 370,000 policyholders were identified as holding 700 types of policies issued by 60 insurers that may be affected by the outcome of the test case.
The High Court’s judgment last September resolved most of the key issues but, because we were unable to reach agreement, insurers and the FCA made ‘leapfrog’ appeals to the Supreme Court (without going to the Court of Appeal first).
Today’s Supreme Court judgment is complex, runs to 112 pages and deals with many issues. A summary of the key points is below. The FCA’s legal team at Herbert Smith Freehills have published a bulletin on their website, which may be referred to for further detail.
The FCA argued for policyholders that the ‘disease’ and ‘prevention of access’ clauses in the representative sample of 21 policy types provide cover in the circumstances of the coronavirus (Covid-19) pandemic, and that the trigger for cover caused policyholders’ losses.
The High Court’s judgment last September said that most of the disease clauses and certain prevention of access clauses (12 policy types from the sample of 21, issued by six insurers) provide cover and that the pandemic and the Government and public response caused the business interruption losses. The six insurers appealed those conclusions for 11 of the policy types, but the Supreme Court has dismissed those appeals, for different reasons from those of the High Court.
On the FCA’s appeal, the Supreme Court ruled that cover may be available for partial closure of premises (as well as full closure) and for mandatory closure orders that were not legally binding; that valid claims should not be reduced because the loss would have resulted in any event from the pandemic; and that two additional policy types from insurer QBE provide cover. This will mean that more policyholders will have valid claims and some pay-outs will be higher.
The judgment brings to an end legal arguments under 14 types of policy issued by six insurers, and a substantial number of similar policies in the wider market which will now lead to claims being successful.
The FCA’s decision to bring the test case has removed the need for policyholders to resolve many key issues individually with their insurers. It enabled them to benefit from the expert legal team assembled by the FCA, providing a comparatively quick and cost-effective solution to the legal uncertainty in the business interruption insurance market.
The test case was not intended to encompass all possible disputes, but to resolve some key contractual uncertainties and ‘causation’ issues to provide clarity for policyholders and insurers. Today’s judgment does not determine how much is payable under individual policies, but provides much of the basis for doing so.
Following the High Court’s judgment, insurers decided to pay claims on some policies and we asked insurers to progress claims on other policies that the High Court said provided cover so that they could be settled quickly following the appeals to the Supreme Court.
Why have your own loss assessor? There’s a lot of wriggle room with insurance policies and sometimes insurance companies can deny claims if they feel they have grounds to do so.
Following a business interruption claim for Covid, your insurance company instruct a loss adjuster; who works for, and gets paid by, your insurance company.
The adjuster’s job is to look at your policy wording and see if the insurance company is liable.
It’s good practise to employ your own loss assessor for claims advice. If you employ a J.Z.Fogel loss assessor, they will work to make sure your claim is paid and present this claim to your insurance company in a way that will legally maximise any settlement you’re entitled to.