Drafting and Legal Review of Insurance Policies
In an insurance contract, it is not enough to look only at the heading of the policy. The proposal form, information notice, policy, endorsement, general conditions, special conditions, coverage schedule, exclusions, deductibles, limits and the correspondence between the parties are assessed together. Two policies offered under the same name may provide different protection because of their special conditions and clauses.
Our policy and insurance program reviews:
- Determining the insurable interest and the correct policyholder or insured
- Legal matching of the risk inventory with the coverage needed
- Review of the scope of coverage, sub-limits, deductibles, waiting periods and exclusions
- Assessment of the declaration questions and the duty to inform
- Drafting of the provisions on claim notification, documents, appraiser, payment and disputes
- Review of multi-year policies, automatic renewal, termination and the premium arrangement
- Overlap, co-insurance and ranking among several policies
- Definition of the insured with regard to group companies, affiliates, employees and third parties
- Geographic scope, jurisdiction, governing law and the arbitration clause
- Authority and liability of brokers, agents and other distribution channels
In corporate insurance programs, the policy text must be set up consistently with the company’s contracts and its actual risk management. The fact that the insurance required in a supplier or contractor agreement has actually been taken out does not, in every case, remove the liability under the contract; gaps between the policy and the main contract are reviewed separately.
Claim Notification, Expert Appraisal and Insurance Compensation
After the risk materializes, it is important to document the event and the loss, to take reasonable measures to prevent the loss from growing, and to notify the insurer and compile the claim file completely. Photographs, video, reports, official records, invoices, service or health documents, witnesses, electronic data and expert examinations at the time of the loss may not be obtainable again later.
Our work in the claim process:
- Reviewing whether the risk occurred within the policy period and within the scope of coverage
- Preparing the claim notification and the compensation claim
- Assessing the insurer’s document requests for necessity and proportionality
- Appointment of the appraiser (eksper), the appraisal report and a counter-expert opinion
- Reviewing the causal link between the cause of the loss and the damage
- Actual loss, sum insured, underinsurance or overinsurance and the deductible calculation
- Partial loss, total loss, repair, reconstruction and salvage options
- Denial, partial payment or delay of compensation
- Advance payment, interest, additional payment and balance compensation claims
- Preservation of evidence, interim injunction and steps that protect against the statute of limitations
The appraisal report is an important technical piece of evidence; however, on its own it does not determine the legal interpretation of the policy or the outcome of the dispute. The data on which the report is based, the method, the market value, the repair option, and the depreciation and salvage calculation are checked, when necessary, against an expert opinion and other evidence.
The Insurer’s Subrogation and Recourse Actions
To the extent of the payment made within the scope of coverage and under the statutory conditions, the insurer may step into the insured’s rights against the person responsible for the loss (subrogation). Subrogation is not the same concept as the recourse claim that the insurer directs at the insured on the basis of the policy relationship.
In recourse and subrogation files:
- The existence of a genuine and valid insurance payment
- The part of the payment that falls within the policy and the loss
- The person responsible for the loss and the legal ground
- Fault, causation, contributory negligence and exclusion-of-liability agreements
- The date on which subrogation arose and the limit of the claim
- Apportionment among several insurers or responsible persons
- The effect of the insured’s settlement, release or weakening of the evidence
- Statute of limitations, jurisdiction, venue and mediation
- The conditions of recourse against the insured under the policy
are examined. The fact that the insurer has made a payment does not, by itself, settle the liability of the person against whom recourse is sought or the amount claimed.
Insurance Fraud Allegations and Criminal Proceedings
Staged losses, untrue documents, false statements about the cause or amount of the loss, duplicate compensation and collusive transaction allegations may bring legal and criminal proceedings into play together. Evidence such as an in-house investigation, an appraisal report, camera footage, location data, communication records and health or service documents must be obtained lawfully, and personal data must be protected.
A private investigation by the insurance company does not replace a criminal investigation; suspicion and proof must be kept apart. Because denial of insurance compensation, recourse and criminal liability are subject to different conditions, each file is assessed on its own evidence.
First Check in a Claim File
Arrange the policy and its annexes by the date of the loss. Record separately which clause the denial is based on, when the requested documents were sent and which loss item the insurer has accepted. Without prejudice to urgent safety measures, document the current condition with photographs, a report and, when necessary, preservation of evidence before repair or liquidation.
Payment and release are not the same thing
Before a release, settlement, assignment of receivable or full-loss reconciliation is signed, the effect of the text on the remaining claims is reviewed. The fact that a payment has been made does not show, in every file, that all loss items have been covered. In a recourse claim as well, the payment document alone does not prove legal liability.