Property Insurance Claims - Law and Practice

This book provides comprehensive information on property insurance claims and how best to apply the principles of insurance. It considers the fundamental elements of the law and practice of loss adjusting in a form that promotes the study of the profession of a loss adjuster.

The book sets out the principles of insurance law, the parties involved in insurance policies/claims and important policy considerations, including insurable interest, perils, disclosure, warranties and conditions.

Matters following a loss are also covered, such as causation, underinsurance, contribution, measurement of loss, subrogation and fraud.

The text includes sample calculations as well as relevant case law and statutes.

Introduction by Malcolm Hyde

In November 1981, E J D Peverett’s book entitled Fire Insurance Law & Claims was published. Mr Peverett was a claims expert who worked at Commercial Union and the book was published by the Chartered Institute of Loss Adjusters. When I moved from Commercial Union to Ellis & Buckle in 1984, that book was my go-to reference source for all matters concerning property insurance claims. Indeed, it was all loss adjusters’ natural choice, so much so that, almost thirty-seven years later, I can still recall that on page 262 of ‘the book’ contribution apportionments were set out clearly so that as a trainee loss adjuster I could understand and apply the principles.

In 1997, the book was revised by R M Walmsley, and then in 2009 I was asked to re-write it. I obtained the appropriate guidance and assistance from solicitors at DAC Beachcroft – James Deacon and Brendan McCarthy. For me, it was incredibly important to have a legal technical input into this reference resource.
However, to use a phrase from my favourite musical performers, “Time waits for no one and it won’t wait for me”. The law has since changed, society indeed has changed and the way in which loss adjusters work has also changed. This meant that it was time to reconsider the contents, leading to production of this entirely new book, Property Insurance Claims – Law and Practice. I am delighted that Graham Bartlett, who is a Chartered Loss Adjuster and a Barrister, agreed to provide the legal technical content.

The purpose of this book is to support members of the CILA in passing the Institute examinations en route to becoming Chartered or Certified Loss Adjusters. For me personally, becoming a Chartered Loss Adjuster paved the way for considerable career development and therefore this book is aimed at providing the fundamental elements of the law and practice of loss adjusting in a form that promotes the study of the profession of a loss adjuster.
Loss adjusting is a fabulous role, varied, testing and rewarding, requiring considerable knowledge and expertise. This book is therefore written with the intention of motivating the next generation of loss adjusters to achieve Chartered status very much in mind.

Contents:
Foreword
Preface
Profile
List of Cases
Abbreviations

1. Principles of Insurance Law
1.1 Sources of English Law
1.2 The Rules of Statutory Interpretation Common Law
1.3 The Interpretation of Contracts
1.4 Legal Personality

2. The Parties
2.1 The Policyholder
2.3 Insurance Companies and Regulatory Bodies
2.4 Lloyd’s of London
2.5 Co-insurers
2.5 Reinsurers
2.6 Insurance Brokers/Intermediaries
2.7 Underwriting Agencies
2.8 The Financial Conduct Authority (FCA)
2.9 Financial Ombudsman Service (FOS)
2.10 Loss Adjusters
2.11 Loss Assessors
2.12 Lawyers
2.13 Supply Chain
2.14 Association of British Insurers (ABI)
2.15 British Insurance Brokers Association (BIBA)
2.16 AIRMIC
2.17 The Chartered Insurance Institute (CII)
2.18 The British Damage Management Association (BDMA)

3. Agents and Brokers
3.1 The Role of the Intermediary
3.2 Intermediaries in Non-consumer Insurance
3.3 Intermediaries in Consumer Insurance
3.4 Intermediary Fraud

4. Insurable Interest and Indemnity
4.1 Insurable Interest
4.2 The Insurable Interest of Co-insureds
4.3 Landlord and Tenant
4.4 Bailor and Bailee
4.5 Mortgagor and Mortgagee
4.6 Buyers and Sellers of Goods
4.7 Indemnity

5. Perils
5.1 Fire
5.2 Lightning
5.3 Explosion
5.4 Riot
5.5 Malicious Damage
5.6 Escape of Water
5.7 Escape of Fuel Oil
5.8 Storm
5.9 Flood
5.10 Accidental Damage to Underground Services
5.11 Theft
5.12 Accidental Damage
5.13 Subsidence, Heave and Landslip
5.14 Cyber

6. Disclosure in Commercial Contracts
6.1 Utmost Good Faith
6.2 The Duty of Fair Presentation Under the Insurance Act 2015
6.3 Material Circumstance
6.4 Circumstances Material to the Physical Hazard
6.5 Circumstances Material to the Moral Hazard
6.6 Transparency
6.7 The Insurer’s Remedies for Breach of Duty of Fair Presentation
6.8 Loss of the Right to Avoid the Policy
6.9 Financial Ombudsman Service (FOS)

7. The Duty of Disclosure in Consumer Contracts
7.1 Consumer’s Duty of Disclosure
7.2 Section 2, CIDRA: Disclosure and Representations before Contract or Variation
7.3 Careless Misrepresentation
7.4 The Financial Ombudsman Service (FOS)

8. Warranties and Conditions
8.1 Definitions
8.2 Warranties
8.3 Conditions

9. Underinsurance and Contribution
9.1 Introduction
9.2 Underinsurance in Practice – Domestic
9.3 Underinsurance – Commercial
9.4 Protection Against Underinsurance
9.5 Double Insurance and Contribution
9.6 Policy Conditions
9.7 Apportionment in the Event of Contribution

10. Causation
10.1 Proximate Cause and the ‘But For’ Test
10.2 Dual or Multiple Causes
10.3 All Risks and Accidental Damage Cover
10.4 Burden of Proof

11. Measurement of the Loss and Validation
11.1 Introduction
11.2 Buildings
11.3 How to Measure the Loss – Commercial
11.4 Basis of Settlement
11.5 How to Measure the Loss – Domestic
11.6 Reserve for Insurers

12. Subrogation
12.1 Definition
12.2 Conditions Precedent to Exercise of Rights of Subrogation
12.3 Subrogation Conditions
12.4 Exclusion of Subrogation
12.5 Reporting to Insurers
12.6 The Policyholder
12.7 Gathering Evidence
12.8 Pursuing the Recovery

13. Fraudulent Claims
13.1 The Duty not to Make a Fraudulent Claim
13.2 Definition of Fraud
13.3 The Insured’s State of Mind and the Requirement for Dishonesty
13.4 The Burden and Standard of Proof
13.5 Inducement
13.6 Retraction
13.7 The Effect of Termination under s.12(2) of the Insurance Act 2015
13.8 Group Insurance
13.9 Claims Underwriting Exchange
13.10 Chartered Institute of Loss Adjusters Anti-Fraud Special Interest Group
13.11 The Insurance Fraud Bureau
13.12 Ghost Brokers
13.13 Other Considerations

14. Privilege and Disclosure
14.1 Disclosure and Inspection in Litigation
14.2 The Right to Confidential Legal Advice
14.3 Legal Advice Privilege
14.4 Litigation Privilege
14.5 The Without Prejudice Rule

15. The Welfare of the Customer and Loss Adjuster
15.1 Vulnerable Customers
15.2 Other Persons Making Claims
15.3 The Welfare of the Loss Adjuster
15.4 Lone Working
15.5 Violence in the Workplace

A1. Property Damage Wording – Training Purposes Only
A2. The Charter
A3. Bye-Laws
A5. CDM Regulation
A6. Guidance on Asbestos
Index

CILA

The Chartered Institute of Loss Adjusters (CILA) is a globally recognised membership organisation for claims professionals. The Institute sets the professional and ethical standards for those who work in the handling of claims through its qualification framework and guide to professional conduct.

https://www.cila.co.uk/cila/about-cila

Malcolm Hyde

Malcolm Hyde BSc (Hons) DIP (Fr) FCII FCILA FUEDI-ELAE FIFAA is the Executive Director of CILA. Malcolm has worked as a Chartered Loss Adjuster in loss adjusting practices. His main loss adjusting experience has been in Property Claims. Since 1994, Malcolm has been involved in the education and training of Loss Adjusters.

Witherbys

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