Insurance Contract Law Issues Paper 2 Warranties - Law Commission

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B.11 There are many different aspects of disputes over travel insurance which can give rise to a claim: the sample included disputes about whether a theft limit was £200 per claim or per item and whether someone was entitled to be repatriated by club class. However, we were struck that eight out of the 14 cases concerned claims for curtailment or cancellation of a holiday, and five involved disputes about pre-existing medical conditions. Several cases involved both: for example, where a family cancelled a holiday following the serious illness or death of a close relative, and the insurer rejected their claim on the grounds that the relative had suffered from a pre-existing medical condition. B.12 Clauses about pre-existing medical conditions can be drafted extremely widely. For example, in Case 22 an annual travel policy included the following term: It is a condition of this policy that no trip will be covered if at the time of taking out this policy you or anyone upon whom this trip depends has a pre-existing medical condition. B.13 At first sight, this appears to be a warranty. It is drafted in such a way to suggest that if anyone involved has a pre-existing medical condition, the insurer would incur no liability at all under the policy. For example, if a child suffered from asthma, and the father was injured in road accident, the insurer would not be liable for the father’s medical bills. However, it is highly unlikely that the insurer would actually apply the term in this way. B.14 In this particular case, the family had cancelled a trip because the wife needed an emergency operation for a detached retina, and the insurer argued that at the time the policy was renewed (in November), she was aware that something was wrong with her eye. However, when she booked the holiday the previous January, nothing had been wrong. The ombudsman held that it was unreasonable for the firm to offer supposedly annual cancellation cover and then seek to exclude claims because the renewal date intervened between the booking and the need to cancel. Any such term would be a significant or unusual exclusion, which would only be valid if it had been brought to the policyholders attention. 1 B.15 It is clear that a term does not have to be written as a warranty for issues of causal connection to arise. In Case 8 the exclusion for pre-existing medical conditions read: The policy excludes: …. claims where the person whose condition causes the claim is suffering from a pre-existing medical condition, unless declared to and accepted by us. 1 This can be a general problem with annual travel policies: the policyholder can book a holiday in good faith, and then develop a medical condition. At the time of renewal, it is not clear whether the medical condition will require cancellation or not. The FOS discusses its approach to this issue in Ombudsman News, Issue 49, September/October 2005. FOS takes the view that if a firm tells a policyholder that it cannot provide future cover, it should also give them the option of cancelling the holiday and claiming under the valid policy, even though cancellation may not be medically necessary at that stage. If, as in this case, the policyholder acts in good faith but does not realise that disclosure is necessary, then the insurer should at least offer the cost of cancelling the holiday at the time of renewal. 108
B.16 Here a breach of the term does not prevent any liability from arising. It does not exclude all claims, only those relating to the person with a pre-existing medical condition. However, the way the term is worded does not require that the preexisting medical condition causes the claim. In theory, if a child suffering from asthma was injured in a road accident, the claim would be excluded even if there was no link between the asthma and the accident. B.17 What was particularly interesting about this case is that the ombudsman interpreted the term as requiring proof of a causal connection. The complainant had cut short her holiday when her mother suffered a heart attack, but the insurer rejected her curtailment claim on the grounds that her mother had a pre-existing medical condition. The evidence showed that her mother had suffered from hypertension for the last 50 years, but her condition appeared to be stable and controlled. 2 B.18 The ombudsman upheld the complaint and required the insurer to pay the claim. He commented that the insurers had provided no evidence to show that the longstanding hypertension caused the heart attack. An internet article suggesting a general link between the two was not enough. I do not consider that the firm is able to demonstrate on the balance of probabilities that [the mother’s] pre-existing medical condition was directly responsible for the cardiac arrest. B.19 The decision is noteworthy, as it goes further than the recommendations in the 1980 report. First, it puts the burden of proof firmly on the insurer to show the causal connection. Secondly, it requires the insurers to show more than a statistical correlation between hypertension and heart attacks. Instead the insurer is required to prove that the pre-existing condition is directly responsible for the event which gives rise to a claim. B.20 In Case 29, Mrs B had declared that her husband suffered from hypertension, diabetes and gout, and received notification that these were excluded from the policy. When Mr B suffered a heart attack on holiday, the insurers relied on policy wording excluding any claim arising “directly or indirectly” from the pre-existing condition. They rejected the claim on the grounds that the heart attack arose indirectly from the previous conditions. The ombudsman pointed to discrepancies between the policy wording and the other documents Mrs B had been sent, which did not use the word “indirectly”, commenting: 2 If the firm intends to exclude claims that arise “indirectly” from any medical condition, this is a very significant restriction on cover and I consider the firm must make its meaning abundantly clear. In this case, it was fair and reasonable that the insurers should pay the claim. In retrospect, her mother may have suffered a possible left ventricular failure the previous year, but there was no definite diagnosis and the doctor’s suspicions were not conveyed to her mother. 109
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Insurance Contract Law Issues Paper
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SPECIFIC UNDERTAKINGS AS TO PAST OR
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Reinsurance 15. Are there any reaso
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Basis of the contract clauses 39 Sp
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PART 1: INTRODUCTION BACKGROUND 1.1
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PART 2: BACKGROUND WHAT IS A WARRAN
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Held covered in case of any breach
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For example, in Farr v Motor Trader
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We recognise that a consequence of
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THE RECOMMENDATIONS 3.3 The 1980 re
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The test in the final report 3.12 F
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3.21 A more recent example is Seddo
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PART 4: ARE WARRANTIES STILL A PROB
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(4) The wording of the warranty doe
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4.12 The “innominate term” clas
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4.23 The 1977 Statement of Long-Ter
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4.34 The Long-Term Statement, howev
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4.42 In Director General of Fair Tr
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Does an exception have to be in pla
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4.60 It is not necessarily sufficie
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4.69 It might be argued that most w
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4.78 However, issues of causal conn
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4.86 Case 14 concerned a critical i
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5.5 In 1980 the Law Commission desc
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5.15 The effect of the Regulations
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Business insurance 5.25 The problem
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PART 6: WARRANTIES IN OTHER JURISDI
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6.10 In a 1982 case, the judge expl
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(b) In the view of the court or arb
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(4) Where the insured proves that s
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6.33 An added twist to these diffic
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6.44 The problems appear where the
Page 65 and 66: 6.53 Soyer argues that on the facts
Page 67 and 68: 6.64 An example will illustrate the
Page 69 and 70: PART 7: PROVISIONAL PROPOSALS 7.1 T
Page 71 and 72: All insurance 7.12 For both consume
Page 73 and 74: 7.20 In the seminar we were asked w
Page 75 and 76: 7.28 The last option is the most ra
Page 77 and 78: 7.37 It would be consistent with th
Page 79 and 80: 7.46 There are two reasons why an i
Page 81 and 82: Other types of clause dealing with
Page 83 and 84: 7.68 We tentatively conclude that t
Page 85 and 86: Our provisional view 7.75 In our vi
Page 87 and 88: 7.85 We think it would be unduly fo
Page 89 and 90: 7.97 Should the causal connection t
Page 91 and 92: 7.105 It has been put to us that a
Page 93 and 94: Legality 7.116 The warranty of lega
Page 95 and 96: 7.127 In 1980 the Law Commission re
Page 97 and 98: Continued liability for premiums FU
Page 99 and 100: 7.148 The question is whether this
Page 101 and 102: 7.157 Often both forms of waiver in
Page 103 and 104: PART 8: AN UNFAIR TERMS APPROACH TO
Page 105 and 106: 8.10 These provisions require the c
Page 107 and 108: (3) In examining whether a term was
Page 109 and 110: APPENDIX A: THE IMPLIED WARRANTIES
Page 111 and 112: A.11 There are some reasons to trea
Page 113 and 114: To nullify a bargain in such circum
Page 115: Table 1: Type of policy Travel 14 2
Page 119 and 120: (4) In Case 20, the policy excluded
Page 121 and 122: significant definitions, terms and
Page 123 and 124: B.46 Although ombudsmen are unsympa
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Insurance Contract Law Issues Paper 2 Warranties - Law Commission

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