FAIS Ombud gets tough on chance takers
What happens after a financial services industry Ombudsman rules against a complainant? If the case was heard by the Short-Term, Long-Term or Banking Ombudsman you’d be excused for thinking the standard response is to accuse the intermediary of ‘improper’ advice. It appears more consumers are approaching the Ombudsman for Financial Services Providers (FAIS Ombud) in a last-ditch attempt to win some form of compensation. In two recent determinations the FAIS Ombud sends a clear message to these desperate complainants – a sympathetic ‘second hearing’ is not guaranteed. Let’s take a quick look at two cases where complainants learnt this lesson the hard way...
Never make assumptions about insurance policy wording
Shaun Jansen van Vuuren (the claimant) insured his off-road motorbike through Action Plan Management CC (the respondent). The respondent placed the business with Constantia Insurance Company which used Wheels Underwriting Managers as underwriting managers. Five weeks after the inception of the policy the complainant’s motorbike was stolen from his locked garage and a claim for the loss was duly lodged. But the insurer rejected the claim on the grounds that a tracking device or alarm, required in the conditions of cover, was not fitted.
This complaint found its way to the FAIS Ombud after adjudication by the Ombudsman for Short-Term Insurance (OSTI). The OSTI ruled “that the insurer’s decision to reject the claim could not be faulted because the completed proposal form clearly excluded theft cover if the motorbike was not fitted with either a tracking device or an alarm system.” The OSTI then encouraged the complainant to take the matter further on the grounds the intermediary may not have provided adequate advice. After the OSTI ‘cleared’ the insurer the complainant went after the intermediary for “compensation for the loss of his motorbike, which was insured for R50 000.”
The FAIS Ombudsman was faced with two critical issues in this determination. First – whether the complainant knew of the requirement. And second, whether the respondent should have informed the complainant of the devices available for him to comply with the requirement. The complainant assumed that he couldn’t install the device due to the motorbike not having a battery. Both issues were clear-cut from the evidence presented. “Complainant admits being aware of the requirement for an alarm or tracking device prior to the claim having arisen,” took care of the first. The second issue boiled down to a dispute of facts “after” the claim. And this led to the FAIS Ombudsman deciding this was “not a situation where the broker incorrectly advised the complainant…” The complaint was dismissed and the respondent was ordered to pay case fees.
Saved by the insured’s misrepresentation – just
In August 2005, John Anthony Maciel (the complainant) insured his motor vehicle with Santam, using the intermediary services of Nell Makelaars (the respondent). Three months later, in November 2005, the vehicle was stolen. The insurer not only rejected the claim; but cancelled the policy and refunded the premiums paid “on the ground of non-disclosure of the misrepresentation of a material fact.” They noted that the complainant’s previous insurer had cancelled his policy and that the vehicle was insured for private use when it was clear that it would be used for business purposes too. It seems like another cut-and-dried case; but the complainant alleges that he had disclosed the required information and that “Mrs Vos [an employee of the respondent] had transferred the information to the application form after [he] had already signed [it].” The twist in this tale is that Vos wrote a motivation to the underwriters confirming the complainant’s version, that she was ‘responsible’ for the omission.
The respondent defended the claim on the basis that they “should not be held liable as in any event, the insurer would not have accepted the claim because of the misrepresentation about the use of the vehicle.” The claimant first sought relief from OSTI before being referred to the FAIS Ombudsman. After a thorough examination of the facts the Ombudsman concludes that “even if Vos had not made the admitted mistakes, the insurer would still have rejected the claim on the ground of misrepresentation.” The complaint was dismissed and the costs awarded against the respondent.
A warning to intermediaries
This determination included a warning to intermediaries to “follow the letter and spirit of the General Code of Conduct for Authorised Financial Services Providers and Representatives.” Respondent’s employee had not acted with due care and diligence in completing the insurance application and had allowed certain errors to creep in. Had it not been for “the complainant’s material misconduct’ the determination would certainly have been different.
Both cases highlight the need for vigilance when writing new short-term business. If you deal in specialist or niche short-term products then you should take additional steps to make sure your client has a good grasp of the requirements in his policy. The off-road motorcycle market is ‘difficult’ to insure – and we don’t know too many off-road enthusiasts who would want to lumber their motorbikes with batteries and tracking devices. Go the extra mile (after telling your client what has to be done) and make a suggestion on how to do it.
Editor’s thoughts:
Sometimes the conditions attached to short-term insurance policies can be extremely onerous. In these cases it seems the consumer often chooses to ignore the conditions despite knowing about them. Are you aware of any conditions that clients tend to ignore? Add your comments below, or send them to [email protected]
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