Andrew Porteous and his family had been fighting AMP for a life insurance payout worth $450,000. Photo / Givealittle
Andrew Porteous and his family had been fighting AMP for a life insurance payout worth $450,000. Photo / Givealittle
Last month Emma Porteous' life got a bit better. Not great, just a bit less hard. After close on three years of fighting against insurance giant AMP, the young mother-of-two finally got a settlement on a $450,000 claim arising from her then 34-year-old husband's terminal cancer diagnosis and death.
The problem for Porteous was grey areas around Andrew's life insurance policy. Between getting sick in 2015 and being diagnosed, Porteous was made redundant. While he tried to get his health problems sorted, and unbeknown to him, his life insurance policy lapsed.
AMP refused to pay out. Emma Porteous took them to court, and in April the parties settled for an unknown sum. Probably not $450,000, but still a David-Goliath victory.
Meanwhile, AMP and its fellows are under the gun for misconduct from the Royal Commission in Australia and from NZ's Consumer Affairs Minister Kris Faafoi. Among others.
MBIE last month released its Insurance Contract Law Review options paper. It is also consulting on a new financial conduct regime.
Could the Porteous decision be a sign of a softening from the insurance industry? Or at least companies acting on some regulatory warning signs?
Not a chance, says Andrew Hooker from Auckland-based Shine Lawyers. He's spent nearly 30 years in insurance, first working for the industry and more recently acting for disgruntled clients.
"Insurance companies are as hard nosed as they ever were," Hooker says. "I'm not seeing any evidence of change."
One of Hooker's former clients, Sue Dishington, is still fighting AMP for payout on a $790,000 life insurance policy following the death of her Christchurch accountant husband David in 2013.
As in the Porteous case, Dishington's policy lapsed shortly before his death. Sue argues it was the deadly brain tumour that made David decide not to renew his policy. His doctors agree. AMP does not.
AMP argues it assesses the validity of all claims "in the same considered and robust way to ensure the best outcomes for all clients". In 2018 AMP Life paid $107 million in life insurance, $25m in trauma and $29m in income protection claims.
Hooker points to a common insurance company strategy known in the trade as "delay, deny, defend". Insurers delay a decision, meaning ever-more-desperate claimants are likely to accept a less-than-full settlement. The last resort is to defend a court case with expensive lawyers.
Hooker says he gets people walking into his office every week with unresolved claims on life, income protection or permanent disability insurance policies. There are two common issues. First, insurance companies using their own medical specialists to argue someone is capable of working, despite other doctors saying they aren't.
Sue Dishington is still fighting AMP for payout on a $790,000 life insurance policy following the death of her husband David Photo in 2013. Photo / Martin Hunter
Take the recent case of a senior financial specialist with such a seriously damaged heart his cardiologist warned any level of stress could trigger a heart attack. His insurance company said he could still type, use the phone and sit at a desk, so he could work. It didn't agree he met the criteria for permanent disability.
Second, insurance companies refuse to pay out on policies if a customer hasn't disclosed another health problem.
For example, someone is diagnosed with cancer but the policy could be voided because they failed to disclose a bout of depression five years before.
If that sounds crazy, learned people have been pointing it out for decades. More than 25 years ago, judges in the State Insurance v McHale case said "the law in New Zealand as to... the duty of disclosure is not satisfactory. It can lead to uncertainty and injustice." In fact, the judges in that case said it was "unfortunate" the problem hadn't been resolved when law reforms were enacted in 1977. That's 40 years ago.
Consumer Affairs Minister Kris Faafoi. Photo / File
Faafoi's insurance contract law paper has sections on both disclosure and potentially unfair contract terms. Under the latter, MBIE specifically mentions as potentially unfair the fact insurance companies have discretion to decide whether someone is able to work.
Meanwhile, insurance companies are under attack from one final quarter - litigation funding. Third party litigation funders provide financial resources so people can take court action they wouldn't otherwise be able to afford - and take a slice of any settlement.
The Porteous case was funded by Auckland litigation funders LPF, albeit on a pro-bono basis. The action on behalf of creditors of the failed construction company Mainzeal is also litigation funded. As is the kiwifruit growers case against MPI.
But don't expect insurance companies to take any moves to curb their power lying down. The fact judges have been pushing against disclosure practices for years is a sign of what a powerful lobby group it is.
"The insurance industry will kick and scream and yell and make arguments," Hooker says.
Still, he reckons Faafoi is a minister with "bottle". And what's going on in Australia gives him a tailwind.
