Specificity and Policy Wordings
We're heading into the final stretch where everyone should have their licensing and education requirements done; I'm not going to dwell on this, other than to say well done for getting it sorted and continuing your journey with this great industry!
Wednesday, March 15th 2023, 11:52AM 
25 Comments
by Jon-Paul Hale
Following on from my recent article about the timing of disclosure and its potential challenges, I've been asking some specific questions of insurers.
The responses to this have been surprising and not surprising, with three insurers not responding and the bulk of insurers having vague responses.
What was the question?
When does a client's responsibility for ongoing disclosure at application stop?
The bulk of the answers have the been expected; the date the policy is issued. Which, on the face of it, sounds perfectly reasonable.
Let's stop for a second and consider that:
- That date, is it reasonable?
Why do I ask that question? In our insurance law, a provision obligates insurers to process the insurance application reasonably.
This is both for the terms of the policy as well as the time taken to process the application.
We have all been exposed to the increasing delays with insurers processing things; I had one insurer state today that their turnaround time for responding to an email to claims is 18 days!
This means that the timing of processing once cover is accepted, by the insurer as standard or the client with terms, becomes a concern for disclosure.
If it's going to take the insurer 2-3 weeks to process and issue cover, then that's a long time for something with the client to happen!
I recall one client with an adviser I used to look after as a BDM, where the cover was accepted and issued on a Friday (the good old days of same-day processing!). The client went backwards out the window from the second floor on the Saturday night housewarming and put themselves permanently in a wheelchair.
So while some of you may be considering this more of J-P doing obscene things to spiders, there are real-world reasons for my attention to this.
This example highlights how problematic an approach to policy issuing being the "date it's processed" on the insurers' system when it can take the insurer two weeks to get around to it.
In the above example, would the insurer pay the claim if they had yet to process it in time? Probably. This sort of thing would be unreasonable in the press to have public; at the same time, the insurer would be within their standard processing to decline it as the policy wasn't issued.
This demonstrates the significant spectrum we have to work with and manage, representing a risk we have to consider and manage.
With the responses I have had, I'm most impressed with Fidelity Life's approach.
The client's requirement to disclose a change of health in the application and underwriting process ceases at one of two points:
- When the insurer offers the cover at standard rates with a completed payment authority or payment of the first premium.
- When the client returns the accepted terms to the insurer with a completed payment authority in place, as above.
And the wording around that isn't the day or date, but the moment.
Meaning clients have a very clear and defined disclosure period that is not impacted by the insurer being tardy with processing the policy for issue and producing policy paperwork.
Conversely, the worst one to date has been AIA, where on page 6, paragraph 2 of the current underwriters' guide (Nov 2022), it states: "Their duty of disclosure extends to the date the insurance is concluded between us."
The example that follows that sentence talks about the underwriting process; however, taking that as the literal statement, you could be mistaken in thinking that client disclosure is all the way through the contract until it is claimed or cancelled…
Different from what's intended, at the same time, it highlights a significant range and lack of specificity with the documents and processes we have to work with.
Not to mention that the question generated a concerning amount of fluffing around with most insurers. Meaning the question wasn't able to be simply and directly answered by some insurers, requiring the involvement of more senior people than the front line.
This sort of issue and question should be an obvious, well-documented part of the insurers' operating process.
Insurance contracts and contract law are a fundamental core piece of what we do. When the client is covered, and the insurer is on risk, is pretty damn fundamental!
Sure, I may be splitting hairs and being unreasonably detailed here, but at the same time, that's how it's looked at until there's an issue and someone is impacted.
Today, I would hate to have my client go out the window on Saturday night after moving into their new home after accepting terms on Friday. I have little confidence (except Fidelity Life) that they would be covered for their claim.
But then again, I'm a noisy pain in the arse, so they would probably pay for that one ;)
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Comments from our readers
On 16 March 2023 at 10:35 am EC said:
Hi JP
The way I read Fidelity Life's approach is that that FL considers the client still has an obligation to disclose the event (in your example; falling out of a window) right up until the time that the client has been given STD rates and issued, or has returned accepted terms with payment info.
Therefore, they have to still disclose the incident and may not have a claim paid.
Am I missing something different here in Fid's approach to say AIA's?
On 16 March 2023 at 11:17 am Snoopdog said:
Hi JP,
There is some merit in what you are saying. It is worth noting that I think most insurers will have a level of interim cover that would cover accident related claims while going through the application process. So they are probably covered for falling out a window.
On 16 March 2023 at 4:49 pm JPHale said:
@EC if the policy had not been accepted as standard terms or if terms had been offered and the terms were not accepted or had not been received by Fidelity, then yes, there would be no claim.
My comment was "after accepting terms", inferring that either terms by Fidelity were accepted Standard or an offer of terms had been accepted by the client and returned to Fidelity Life.
By Fidelity Life's wording, I could help the client move in on Saturday, over a beer after, discuss the terms, have them accepted and emailed to Fidelity Life, and then the client could fall out the window later that night and they would still pay the claim.
As their wording is "the moment it is..." and the email receipt would have the date and time stamp prior to the accident event.
Rather powerful when you put it in this context, however, unlikely he situation may be. There's always one that gets interesting.
On 16 March 2023 at 9:10 pm Murray Weatherston said:
Fidelity's answer seems to me to be exactly as ordinary contract law would have it. If I remember my 1972 Contract Law classes correctly, to have a contact you need an offer, an acceptance and consideration. As soon as you have all three, you have a contract.
From first principles, I would think an insurance application duly completed is an offer to purchase insurance at standard rates. If the insurer accepts it at standard rates, then the only thing missing is the clients first premium.
If . however the insurer offers terms, then just like an amended real estate S+P, the situation becomes an offer by the insurer to provide insurance on those terms. Once the insured accepts those terms and provides payment consideration, the contract is agreed.
I am sure real lawyers will jump on me if either this doesn't correctly explain the making of an agreement generally or if insurance law doesn't follow general law.
When you use first principles to solve a problem the answer usually falls out.
On 17 March 2023 at 8:46 am w k said:
law of contract .... capacity to enter into a contract and meeting of minds. On 17 March 2023 at 9:52 am Dirty Harry said:
in the old days, and Muzz will remember, you used to send in a post-dated cheque as the first premium. This meant 'valuable consideration' was satisfied, and the third element (after offer and acceptance) was pre-met ready for that acceptance.
It has long been SOP to consider the intent/authority to pay as sufficient - IE granting a DD authority to a bank account or credit card is deemed valuable consideration.
So when an offer is made and accepted, that should be that.
What JP has found is that some providers have their own take on when EXACTLY the moment is that the policy is ON RISK and disclosure obligations end. This is a fundamental aspect of insurance. The timing of the policy starting. And it really bothers me that there are different meanings for when that is.
BTW The FnG world has this figured out. Your schedule shows a period of insurance. And it states the very minute the cover starts and ends.
4pm.
All policies start and end at 4 o'clock on the start/end date.
It's not hard.
Life companies need to sort it out. Or maybe the grown-ups need to, I dunno, make up a rule?
Stick that in your CoFI and smoke it.
On 17 March 2023 at 11:00 am Graeme Lindsay said:
These apparently small differences between the wordings and practices of insurers can certainly be interesting.
One of our subscribers pointed out another clear difference recently. All Trauma contracts have a (generally) 90 day (3 month) stand down for some conditions. Most insurers start the 90 days from the date cover commences. Chubb (Cigna) and Partners start the 90 days from the date of receipt of application! Given the sometimes unconscionable delays in getting cover issued, this could be significant.
On 17 March 2023 at 11:47 am dcwhyte said:
@ Muz - An application is a request to be considered eligible to acquire the product. The offer emanates from the insurer, followed by the acceptance of terms offered - standard or otherwise - if the applicant decides to proceed. Consideration finalises the contract.
On 17 March 2023 at 1:56 pm JPHale said:
Thank you, learned gentlemen, for the support on this seemingly arcane point.
As Dirty Harry has said, the wide variety of answers I have had to what seemed like a simple question has been bewildering.
When I penned my original article around this subject (the one prior to this), it triggered my own question for my practice; I don't have this nailed down enough; I'll ask the providers to clarify.
And I did. (Yes, it really was that simple (for the insurers reading this thinking differently!))
If this truly was the simple answer it should have been, I should have had immediate replies, thrown them in my procedures manual for the record, and got on with life.
But I didn't; I had emails back going; we need to talk to legal, or managers, or someone else... And this prompted a very significant Huh? How? Why? What? on my end.
Not usually a good thing to do, as I then have a much closer look and ask much more difficult questions of specificity...
My broad point, which many of my colleagues have also stated, is the time between the cover being accepted, (terms or standard rates) and the cover being issued can be a couple of weeks with some providers. This is a hell of a time for clients to still be on the hook for both disclosure and not having coverage.
Especially if the issue that appears is not an accident covered fully by the cover note!
p.s there is more to follow on this soon. :D
On 17 March 2023 at 1:57 pm JPHale said:
@Snoopdog, true, in my example, the interim cover note should capture that and respond, but you need to be careful here as the response from these is limited, and many don't cover the amount of coverage or duration of cover applied for. (as an accident example, it steps around the 90-day standdown stuff others would get tripped up with considering the process) On 17 March 2023 at 2:32 pm s miller said:
Good topic and the consensus seems to be the ongoing disclosure is required up until there is a contract.
The interesting point is the residual risk this creates for clients for the period until the contract is live.
More efficient processing benefits customers by reducing this risk.
So if as alleged processing times are increasing that is not a good customer outcome and maybe the FMA should look at the behaviour of insurers in this area.
Interesting that JP states there are longer processing times without evidence.
Of course anecdotally he may be correct but surely it is better to base things on evidence and facts rather than hearsay or personal experience of a few cases.
The increasing use of e-apps, straight through processing and quick access o medical records via software (is it clanwilliam?) would surely leader to typically shorter processing times rather than longer as JP alleges.
JP do you have any evidence (industry data etc) for your allegations that turnaround times are longer or is it just here say based on some cases you have ? Your client base and approach may be different (you may not use e apps that facilitate high straight through processing rates).
On 17 March 2023 at 2:39 pm AIA NZ said:
At AIA NZ, the obligation of disclosure is an ongoing one up until the policy is issued, however that occurs – for example, there are different processes depending on whether the application is made via eApp or whether terms are agreed with our underwriters.
An adviser should advise the insurer of anything they become aware of from the customer before the policy is issued. The obligation of disclosure ends when the policy is issued.
AIA NZ's March 2023 Underwriting Guide includes this wording.
On 17 March 2023 at 2:40 pm welly said:
The AIA and Fid approaches seem in effect the same - duty to disclose Carrie’s on until contract in place.
So I think JP is taking a long bow to say Fid give the client more certainty than AIA. But agree AAIA’s us guide reads sloppy and maybe JP is right to call that out.
Slow processing creates a bad outcome and insurers need to be held to account if this is really worsening. Maybe the FMA could give the insurers a hurry up as they are supposed to help drive better customer outcomes.
On 17 March 2023 at 4:52 pm JPHale said:
@Welly, appreciate the comments.
There are two aspects here that do have slightly different rules, the use of e-apps and traditional paper.
I have stated many times that I refuse to use digital apps with clients unless absolutely necessary due to the increased disclosure risk they represent. And every case ends up outside the insurer's system being manually underwritten anyway.
* Every client claim complaint that has come to me has been an e-app of some description.
* And Sovereign's non-disclosure claim decline rate doubled 18 months post-e-apps, good to have friends in interesting places.
* there is a distinct difference in client disclosure when working with paper vs a typed application process; the written one gathers much more detail and is less reliant on clients being able to type. Or bother at 10 pm at night.
* not to mention my 20-something years of working with e-app processes both inside and outside insurers, where disclosure is problematic compared to pen and paper. (I was recruited into the industry to deliver an e-app system to the market originally)
So let's stick with the traditional process for the discussion.
When I kicked off as an adviser, it wasn't unusual for the underwriting period to take around 40 days, and once terms were signed or cover was offered, it was a day, maybe two, before the policy was issued.
In more recent times, it can take 90 days or more to get underwriting completed, and then once terms are signed, it can take 7-14 days for the policy to be issued. Cover note no longer works, and the client has significant exposure on time to issue.
This is real-world experience with current underwriting, both my own cases and those of the numerous advisers I talk to on a regular basis.
In one case this week, terms, with Fidelity Life, were accepted and returned on Wednesday last week. Yesterday, 8 days later, I received the confirmation of policy schedules from Fidelity Life.
Without casting too much shade, as most providers have service challenges, the time from good to go to policy schedule is 5-7 days consistently. A lot can happen in that time.
And that's before you get into commencement dates and other clauses that add further "delay" to the coverage being in place.
Reviewing a claim decision this afternoon on a trauma claim declined within 90 days, the client signed and accepted the terms with the policy issued on the 19th of the month, the policy commencement date was the 27th of the month, and the insurer started the clock on the 90-day clause from the commencement date, the 27th.
Most of us would assume cover started on the 19th, and so should the clock. Nope, with this insurer, the 90-day clause is 98 days from our perspective...
There are issues here, some will say we're in the weeds; well, tell that to the family not getting paid when they expected to because the insurer can't give a straight answer on dates!
On 17 March 2023 at 5:08 pm JPHale said:
@AIA NZ, thanks for joining the discussion!
When this article was written and submitted to GR (8/3/2023), the published underwriting guide at the time was the November 2022 one.
I have yet to see a published March 2023 version, and it's so shiny and new that it's not been seen yet!
Though AIA did send me their further explanation earlier this week, it doesn't change the point I'm making.
My point above was a demonstration of how obtuse the industry wording is, and the wording I made example of had been there for a number of prior versions in their underwriting guide. I have most of them ;)
I did say the following example in the guide referred to the underwriting process.
In response to AIA's comment.
* "Section 10" is well understood by advisers; there has never been any suggestion that advisers withhold information they are obligated to pass on.
* And thanks for confirming the obligation of disclosure ends when the policy is issued. That we also know.
The problem I have been banging on about is that the idea of "Policy is issued" is not defined.
When is this exactly?
How long is it likely to take once terms are signed and returned, or is the policy accepted standard?
I had a Partners Life policy prior to Christmas accepted standard and passed to admin to issue; I advised the client, "it's been accepted", I got Covid with an ambulance ride and was off work for two months.
I came back mid-Jan, too early, it seems, and checked on things; that policy from prior to Christmas still hadn't been issued. Yes, 5 weeks later! Fortunately, it was a minor top-up, and nothing went awry, which is unusual for me, I know! And it was tidied up.
If AIA is feeling picked on here, it's not personal; every single insurer has issues; AIA just had the best example of obtuse vagary in a written adviser guide...
And Fidelity Life has the best answer here by a long way. Specific, simple, and to the point. This needs standardising across the industry because it does cost families; as minor an issue as people consider it to be; it's pretty major for those impacted!
On 17 March 2023 at 5:30 pm JPHale said:
@S Miller, interesting comments about anecdotal and evidence, as there aren't any industry stats published on this; insurers don't like to air their dirty laundry on crappy processing times; it doesn't help applications come in the door.
In terms of the aspects of underwriting you reference, these are neither under adviser control nor able to be reported on by advisers.
The cold hard facts are the cases we manage and work with daily, and those of us who track what happens in our processing have a pretty damn good idea of what's working and what's not.
Though interestingly, your offensive superior attitude and language suggest that while you advocate for a faster technology approach, you fail to appreciate the art aspect of the industry and the nuanced issues that technology creates in the life insurance space.
This is fine for commodity general insurance products, but nuanced life products in interesting client situations don't lend themselves to clean and shiny as you seem to prefer. Ok for one size fits all bank and VIO channels, not how advisers work with complex cases.
Much of my comment in my @Welly comment was directed to this tech shiny aspect, missing the human factor that is the point of what we do, helping people.
On 17 March 2023 at 7:04 pm Dirty Harry said:
"The increasing use of e-apps, straight through processing and quick access o medical records via software (is it clanwilliam?) would surely leader to typically shorter processing times rather than longer as JP alleges"
Hahahahahahahahahahahahahahahahahaha
Surely.
And surely premiums could be lower.
Surely Compliance could be cheaper and easier
Surely my 930 on Monday morning will show up on time
On 20 March 2023 at 3:57 pm Tash said:
It's useful to remember that insurance contracts are contracts of utmost good faith. This has consequences for disclosure and has been accepted for a long time.
A commonly referenced legal precedent for utmost good faith is Carter v Boehm (1766), and although it is over 250 years old, still gives a succinct summary of the key points and is still the law as far as I am aware:
• 'Insurance is a contract based upon speculation. The special facts, upon which the contingent chance is to be computed, lie most commonly in the knowledge of the insured only; the underwriter trusts to his representation and proceeds upon the confidence that he does not keep back any circumstance in his knowledge, to mislead the underwriter into a belief that the circumstance does not exist, and to induce him to estimate the risk as if it did not exist.'
• The duty exists during the process of application for insurance, and continues once the contract is agreed and the insurance is in place, to any renewal of the contract, and any claims that are made.'
On 21 March 2023 at 9:37 am JPHale said:
Thanks for the comment Tash. The ongoing duty of disclosure for general insurance is correct.
There is no suggestion here that clients are non-disclosing. This is about when the contracted disclosure requirement ceases when it comes to life insurance.
Because life insurance, unlike general insurance disclosure ceases once the policy is issued.
And the varying time frames around how this works, relative to the clients ability to control the outcome of the policy, means that they can have significant time exposure to new events happening while insurers get around to it.
And as we are finding out the understanding and expectation of the consumer versus the advisor versus the insurer, there are differences in expectation and understanding in the present environment.and as we are finding out the understanding and expectation of the consumer versus the advisor versus the insurer, there are differences in expectation and understanding in the present environment
On 21 March 2023 at 11:58 am CodyS said:
One could argue - if a change in a client's circumstance occurred due to an insurance uw delay they would be liable if the delay was outside the normal SLAs an no attempt to communicate this was made
.
On 21 March 2023 at 3:22 pm Dirty Harry said:
Ahuh. “Useful”.
Sure.
But, it has not just been “accepted” for a long time. It’s been contentious for a long time. Change has been called for by the Law Commission, by the Appeals Court, by consumer advocates, for a long time.
BTW, Carter was about an insurance policy taken to indemnify Fort Marlborough in Indonesia against being taken by a foreign enemy.
And Carter won that case. A minor detail too often overlooked by those who cite it as a big deal on disclosure.
Lord Mansfield found in favour of the policyholder on the grounds that the insurer knew or ought to have known that the risk existed as the political situation was public knowledge...
So… not a good example, only useful in that it is the basis for uberrimae fidei in insurance contracts.
Recommended reading http://www.nzlii.org/nz/journals/AukULawRw/2014/5.pdf
Why did you not refer to McHale instead?
Besides, the discussion is not about utmost good faith (uberrimae fidei) but about the timing of the period "during the process of application". If it was about utmost good faith, it would be a discussion about how inadequate NZ law really is on this matter, how the UK and Australia have both made significant progress in this area, that NZ has been calling for this change since the 1998 New Zealand Law Commission paper "Some Insurance Law Problems", and that since then we have the Insurance Contract Law Review which started off great, in 2018. And we've heard nothing more about since consultation on the Options Paper closed in April 2019.
Hello? MBIE? Where are we at with that mmmm?
But we're not talking about UGF.
Back on track.
So, the "duty" is to disclose (" not keep back any circumstance in his knowledge...") ... "during the process of application for insurance" – yes. But when EXACTLY does that period END!?!?!? and "continues once the contract is agreed" - yup the duty to disclose stuff during the period of application never goes away - but that does NOT mean any new material facts AFTER the poorly-defined-nobody-agrees-upon DATE must also be disclosed.
Neither Carter, nor McHale addresses this. Nor for that matter does the Insurance Law Reform Act 1977.
Got it?
WHEN is the insurance IN PLACE?
WHEN is the duty of disclosure CONCLUDED?
On 22 March 2023 at 9:36 pm JPHale said:
@CodyS somewhat, and pragmatically where this is unreasonable most insurers have accommodated those situations. That's part of the value a good adviser adds to client's cover solutions that you won't see with direct and bank products in the same way.
The difference here is what you’ve outlined are generally waiving exclusions or loadings and are not direct claims.
Where it's direct claims we get a different response that's very letter of the law and that's more the subject of the articles and commentary.
On 4 April 2023 at 9:58 am Chatterbox said:
It seems to pass over the head of most advisers that insurance is for protection arising from the application of 'certainty'. A fundamental legal concept that is necessary for financial markets and society to operate where these markets rely on insurance and are forced to trust it. Instead we see an array of wordings that change over time with discretionary words and terms based on semenatics that also pass over the heads of most advisors. Indeed JPH stated March 28th 2023 " I have been astounded over the years, despite product accreditation, about the number of advisers that just don't know their policy wordings".
Mind you they can be forgiven when the insurer is legally ensuring the wording is carefully drafted to provide as much insurer discretion as possible, or changes the wordings after time of sale with different versions and then introduces "pass-back" conduct that will be undisclosed and unilaterally determined while over the years premiums are extracted from policyholders as the contract wording and versions alter over time and the advisers themselves have no idea either. Insurance means very little until claim time. Seems "disclosure" is a one-sided rule in NZ insurance practices while almost every advisers ignores an insurer is deemed a 'significant public interest entity' where standards of conduct and wording specificity and certainty should not be arguable or offer discretions.,
On 9 April 2023 at 1:01 pm JPHale said:
@Chatterbox you've raised some good points. And yes, extracting passback rules from insurers is like pulling teeth.
And even then, when it comes to claims they often have a different view to what distribution has communicated. Passbacks are one of my pet projects presently. And it's proving quite interesting to go through :D
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The way I read Fidelity Life's approach is that that FL considers the client still has an obligation to disclose the event (in your example; falling out of a window) right up until the time that the client has been given STD rates and issued, or has returned accepted terms with payment info.
Therefore, they have to still disclose the incident and may not have a claim paid.
Am I missing something different here in Fid's approach to say AIA's?