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Berkshire Hathaway Specialty Insurance
Berkshire Hathaway Specialty Insurance

Insurer must pay claimant who did not disclose criminal past

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The Australian Financial Complaints Authority (AFCA) has ruled an insurer has no grounds to decline a home insurance claim because the complainant did not reveal her partner, who is the co-policyholder, has a criminal record.

CommInsure relied on the failure to disclose the information as its basis for denying a claim made by the couple following an “invasion” of the insured address in July 2016, a month after they took up the policy.

A motor vehicle, mobile phones, a gaming console and jewellery box were recorded by police as among the items stolen on that day.

The couple subsequently made an unsuccessful claim from the policy, which provided $90,000 in cover for insured contents and $22,500 for a platinum engagement ring.

Since the claim was made within the terms of the policy, AFCA says the “onus of proof is therefore on the insurer if it is to rely on an exclusion to defeat the claim”.

AFCA says CommInsure failed to prove it had asked the complainant the relevant disclosure questions before the policy commenced in June 2016.

The employee who arranged the policy said in a statutory declaration that his normal scripting would include informing the complainant of her duty of disclosure. But the insurer was not able to provide any supporting evidence that this was the case. The process it had at that time did not require the complainant to acknowledge she had been duly informed.

“The issue for decision is whether the insurer clearly informed the complainant of the duty of disclosure and asked the relevant questions of the complainant prior to commencing the policy,” AFCA says.

Based on the evidence the two sides have provided, AFCA concluded the insurer “failed to clearly inform the complainant of her duty of disclosure”.

There was also no information to “prove the complainant breached her duty of disclosure or misrepresented [her partner’s] criminal history.”

AFCA accordingly ruled that CommInsure must settle the claim.