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Group risk policies… Ombud orders payout

08 August 2018Myra Knoesen
Ombudsman for Long Term Insurance, Judge Ron McLaren

Ombudsman for Long Term Insurance, Judge Ron McLaren

We learn from this determination by the Ombudsman for Long Term Insurance, Judge Ron McLaren, that in the absence of an exclusion clause, there is no legal or insurance principle which prevents an insured from claiming under two different policies for the recurrence of a condition.

A series of unfortunate events

In 2013, a complainant was diagnosed with localised breast cancer and a claim was paid under a policy that was underwritten by another insurer. She underwent a mastectomy in September 2014, followed by radiation therapy and hormonal blockade, without evidence of metastases.

From 1 May 2015, the complainant was covered under her employer’s group risk policy for dread disease, underwritten by Alexander Forbes. In October 2015, the complainant was diagnosed with liver metastases and stage four breast cancer. She submitted a claim to Alexander Forbes, but the claim was declined.

Arguments to decline the claim

Alexander Forbes said the complainant’s dread disease claim was assessed in detail and relied on the following arguments to decline the claim: 

  • The medical evidence indicated that the cause for the claim was directly related to a condition for which a claim had been submitted to the previous insurer and for which the full benefit had been paid;
  • An insurance contract was based on the supposition that the risk had not yet materialised. Therefore, there can be no binding contract of insurance if the risk had already materialised at the time the contract was concluded;
  • Group risk insurance contracts were generally accepted on the same terms and conditions by the new insurer as the previous insurer so as not to disadvantage the policyholder as a result of changing insurers. In agreeing to take over her benefit on the same terms and conditions as per previous cover effectively meant that Alexander Forbes would need to keep its decision consistent with the previous insurer;
  • Shortly after commencing insurance, Alexander Forbes sent out a letter accepting the complainant’s previous cover level from the previous insurer. However, at the time, Alexander Forbes was not aware of her prior claim for the same dread disease with the previous insurer and was also not aware that her previous accepted cover letter from the previous insurer did not make provision for the dread disease claim that was paid. Alexander Forbes’ decision was based on an accepted cover level and decision made by the previous insurer prior to her claim being paid by the previous insurer and was, therefore, not valid. 

Alexander Forbes relied on the pre-existing exclusion clause which stated, “No Dread Disease Benefit shall be payable under this policy during the first 12 months of a Life Assured’s commencement date if, in the opinion of the insurer, the Dread Disease claim is directly or indirectly attributable to any injury or illness in respect of which the Life Assured sought medical advice, or about which he/she knows or could reasonably be expected to have known, during the six month period preceding the commencement of his becoming a Life Assured.”

Based on the evidence

After an adjudicator’s meeting, Judge McLaren made a provisional determination that based on the information on file, the pre-existing exclusion clause could not be invoked by Alexander Forbes. 

According to the Ombudsman, there was no evidence that there had been medical advice sought during the six months preceding the commencement date of cover with Alexander Forbes. Nor was there evidence that the complainant knew or should have known of an illness which fell within the exclusion clause. Based on the evidence on file, Judge McLaren says, she was under the impression that she was in remission. 

The Ombud’s stance

Judge McLaren also said Alexander Forbes’ argument that the risk had already materialised when the contract was concluded, was flawed because the Alexander Forbes policy was a new contract. It was not a continuation/transfer of insurance business and, therefore, was not the insurance business which the previous insurer had underwritten. The Alexander Forbes policy did not incorporate the previous insurer’s terms and conditions. 

Under the previous insurer’s policy there was a provision which stated that if the complainant had received the total dread disease capital sum benefits, she would not have qualified for a further benefit under the previous insurer policy because of this exclusion. There was also an exclusion clause which would apply and exclude her second claim. As she was now covered under a new policy underwritten by Alexander Forbes, the provisions in the previous insurer’s policy did not apply. Nor was there any other provision in the Alexander Forbes policy which excluded her from claiming.  

The current claim, according to the Ombudsman, was not the same claim as that for which the complainant had claimed under the previous insurer’s policy. At the time when Alexander Forbes concluded the insurance contract, there was uncertainty as to whether the complainant would have recurrence of cancer. Because of this uncertainty, the risk had not yet materialised. The complainant was not claiming for the cancer which was diagnosed in 2013.This was a new claim for the cancer which was diagnosed on 22 October 2015. There was no legal or insurance principle preventing an insured from claiming for a recurrence of a condition (in the absence of a specific provision). If Alexander Forbes wanted to exclude a new separate claim for the same disease, it should have incorporated an exclusion clause to that effect. 

While a life assured cannot be paid twice for the same claim under one policy, the Ombudsman says there is nothing preventing a life assured from claiming under two different policies for the same disease and benefit. Alexander Forbes, according to the Ombud, had failed to provide documentation reflecting that the complainant or the employer had not disclosed information. Alexander Forbes appeared to have relied on information provided by the previous insurer in assessing the risk and issuing the cover letter. There was no evidence on file which suggested that either the employer or the complainant had appointed the previous insurer as their agent for purposes of disclosure of medical information to enable Alexander Forbes to assess the risk. In the absence of evidence of a duty to disclose on the complainant and the employer, and the absence of the appointment of the previous insurer as their agent for such purpose, the Ombud says the defence of non-disclosure could not be upheld. 

Editor’s Thoughts:
Judge McLaren ordered Alexander Forbes to pay the complainant for dread disease after she had been diagnosed with cancer a second time, although she had been paid an earlier claim for cancer by the previous insurer. Alexander Forbes said the group cover was taken over from the previous insurer, on the same terms and conditions that existed at the previous insurer. Do you believe the judgement in this case is fair to Alexander Forbes? Please comment below, interact with us on Twitter at @fanews_online or email me your thoughts myra@fanews.co.za.

Comments

Added by kenny, 08 Aug 2018
And rightfully so, don't know why this was even fought.
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