The Queensland Flood Crisis - Part 3 The Queensland Flood Crisis - Part 3

The Queensland Flood Crisis - Part 3

6 April 2011 | Building, Construction & Property

Treasury Releases Flood Law Reform Report

The city of Ipswich is not usually a location that Federal ministers choose to release key policy changes, but yesterday was different when Bill Shorten released the report by Treasury, Reforming Flood Insurance - Clearing the Waters.

Key proposals contained in the report are:-

  • a standard definition of “flood”.
  • a one page Key Facts Statement for home and contents insurance policies.

The Government is seeking feedback and submissions from members of the public on both proposals. The closing date for submissions is 13 May 2011.

Flood

With regard to the public confusion regarding what is (and what is not) a flood the report refers to:-

“The variations in usage of the term ‘flood’ and ‘flooding’ in policies are a potential source of confusion for many consumers. For example, a policy which is stated to cover ‘accidental flood’ or ‘flash flooding’ could give the initial impression that the policy covers risks arising from rivers breaching their banks. However, the policy might contain an exclusion for riverine flooding cover that would be evident on a careful examination.

The different approaches taken in policies to ‘flood’ and related terms and potential confusion for many consumers makes product comparison difficult and may lead to underinsurance for flood risk.”

The proposed definition is:-

“Flood means the covering of normally dry land by water that has escaped or been released from the normal confines of:-
A. any lake, or any river, creek or other natural water course, whether or not altered or modified; or
B. any reservoir, canal, or dam.”

The proposed law reform is to restrict the use of the term ‘flood’ or ‘flooding’ in insurance contracts for anything other than riverine flooding. So for instance the terms ‘flash flood’ and ‘accidental flooding’ would disappear under these reforms. The reforms will ultimately be effected through the Insurance Contracts Act 1984 (Cth). How exactly it is to be done is not set out in the report. It appears that the Government is in 2 minds ie. whether to limit the standard definition to domestic policies (home buildings and home contents policies) or also include business policy holders.

It seems that insurers will be free to use their own definitions for other types of inundation such as storm water, rainfall runoff and actions of the sea. The alternative of defining these other types of inundation within legislation is raised in the report but not with any apparent enthusiasm.

Key Facts Statement

The Key Facts Statement (KFS) is a response to consumer concerns regarding the size of insurance documents, including the product disclosure statement (PDS), and their complexity. In domestic classes there is already an obligation on insurers to present information in a PDS identifying important features of the policy and the scope of coverage in a “clear, concise and effective” manner. The report refers to:-

"Concerns have been raised by a number of stakeholders that the PDS rules for general insurance, as currently implemented, may not be as effective as they could be for informing consumers about the policy, and enabling comparisons between policies. This is likely to be connected with the length and complexity of the PDS and the variations in presentation.

If key information about policies is not readily accessible to consumers, there is a greater risk of consumers acquiring insurance that does not fully match their requirements, and may contribute to underinsurance.”

The proposal being considered involves the issuing of a KFS to be no more than one A4 page in length which contains a set of key facts about the policy. A draft sample is set out in the report. The KFS or parts of it might be prescribed by the Government in the amending legislation. The KFS may not only need to be provided on inception but also at each renewal. The Government seem undecided on this point.

Implications

Rob Whelan, Chief Executive of the Insurance Council of Australia has been very active in working with Bill Shorten, Assistant Treasurer, to settle upon the standard definition of flood. Whilst there may be a few tweaks to the definition contained in the Treasury Report, any amendments are unlikely to be significant.

The proposal to differentiate between riverine flooding and storm water or flash flooding is sensible. There is no doubt that domestic policy holders are often genuinely confused about the difference between the 2 events.

The proposals do not impose any obligations upon insurers to cover flood in circumstances where they otherwise would not.

One would hope for a generous transition period to allow policy wordings to be amended to contain whatever definition(s) is ultimately legislated.

As for the KFS that will also most likely be standardised, or at least the essential terms proscribed by legislation with variations between insurance companies limited by the maximum size of this document ie. one A4 page.

We assume that the obligation to provide the KFS to domestic policy holders will be contained in the Corporations Act 2001 (Cth) which will allow this document to be distributed electronically (under the Insurance Contracts Act there is no ability to effectively deliver documents electronically).

One of the benefits in the government settling upon a definition for ‘flood’ and the contents of the KFS will be that the other reforms to the Insurance Contracts Act, which have been sitting in somebody’s drawer for far too long, may be put back on the table and brought back before Parliament for passing. Previously these amendments were not given the attention they deserved because insurance was not really a priority. Now the amendments are not being passed because insurance is too high a priority. It seems the government is waiting for the reforms indentified in this report to be finalised (as well as considerations regarding whether or not to include insurance contracts in unfair contracts law) before it proceeds with the other amendments.

Should you require any further information about these reforms or other government initiatives such as the Natural Disaster Insurance Review, please do not hesitate to contact Robert Samut who will be pleased to assist.

This is the final publication in our series on legal issues arising out of the Queensland floods. If your company has staff who are involved in flood claims, we have a workshop focussing upon legal and evidentiary issues which we can deliver in your boardroom (using your policy wordings). For more on our training program, please contact Robert Samut.

Get In Touch

Robert Samut

Robert Samut

Principal

Need assistance?

Submit an enquiry online and we will be in touch as soon as possible, or call one of our national offices directly.