Marge* is a physio with professional indemnity insurance. In December 2021 Marge’s insurer advised that they would not be renewing her insurance policy when the policy expired the following March.
In June 2022 Marge learned that a former patient had complained to the Health and Disability Commissioner about treatment given at an appointment in February 2022, before her policy was cancelled. Marge contacted her former insurer immediately, but the insurer declined to even consider Marge’s claim saying that cover ceased when the policy expired in March.
When Marge and the insurer were unable to agree, Marge complained to FSCL.
Marge complained that the insurance policy was not fit for purpose. It would always be the case that a patient would be complaining about events that occurred in the past. Marge believed that even though her policy term had expired, the policy would respond to events that occurred when the policy had been in place.
Marge was very concerned that she, and other medical professionals, might not realise that although they thought they had cover, once the policy expired, they would be uninsured.
The insurer replied that Marge’s policy was a ‘claims made and notified’ policy. The insurer had agreed to indemnify Marge for a claim made during the period of insurance, which was defined as starting at the beginning of the day specified in the insurance schedule and ending at the end of the day specified in the schedule.
Although the event Marge was complaining about occurred in February, she did not notify the insurer of the claim until June, after the policy expiry date in April. The insurer said they had no obligation to consider Marge’s claim.
During FSCL’s review it became clear that everyone, including Marge, agreed the policy did not cover Marge’s loss. Marge’s relationship with her insurer was contractual, so any obligation the insurer had to cover her loss was based on the policy wording. The policy clearly stated that there would only be cover during the period of insurance and, unless the policy was renewed, the policy would cease absolutely on the expiry date specified on the insurance schedule.
However, Marge said that her complaint was really that the policy was not fit for purpose. Marge explained that it will always be after a consultation that a complaint will be lodged, and, without continuous cover, it was inevitable that, despite having insurance in place at the time the event giving rise to the claim occurred, the medical professional will be left uninsured.
FSCL could see that Marge was in a difficult position, however it did not agree that the ‘claims made and notified’ policy was inappropriate. It was the policy she had chosen and paid for. FSCL could not re-write the policy terms to provide cover for those affected by the insurer’s decision not to renew a policy.
It was FSCL’s final decision that, under the policy wording, the insurer was entitled to decline to consider Marge’s claim. While FSCL acknowledged Marge’s concerns about the gap in cover, it could not see that this was a matter for the insurer to resolve.
* name changed
Insights for consumers
Your insurer is only obliged to cover your loss if it is covered by the policy wording. It is important that you read your policy wording to understand the extent of your cover. Those with professional indemnity insurance may like to pay particular attention to what will happen to claims arising or being notified after the policy expires.