Bowen Buchbinder Vilensky

Archive for the ‘Commercial Litigation’ Category

How Best to Submit an Insurance Claim?
Tuesday, August 26th, 2014

lesb

By Les Buchbinder, Director at Bowen Buchbinder Vilensky Lawyers

26 August 2014

What’s the best way to submit an insurance claim.  In three words: through a lawyer.  Of course, if it’s a straightforward and relatively minor claim – for example, when you discover someone has reversed into your car, denting the passenger door and causing a couple of hundred of dollars worth of damage – there is probably no need or point involving a lawyer.

But for larger and more complex matters, legal advice can make all the difference because the wording of an insurance claim is extremely important.  I want to make it abundantly clear than under no circumstances should an insurer be lied to or deceived.  But getting advice on what information must be included in any claim form submitted to an insurer, and how to word this information, is critically important.

I have been involved in cases where significant disability claims have been paid out, while others, that seemed identical, were not.  The difference in outcomes was likely caused or contributed to by the way the claim form was completed.

If an insurer rejects your claim, that’s not the end of the road.  You can seek legal help to have a letter written to the insurer demanding a full explanation of the basis of rejection of the claim.  The grounds on which the claim has been rejected may be able to be contested and other arguments raised in support of your case.

If the insurer still refuses to accept the claim in part or in whole then, you may then have the option to commence legal action against the insurer for breach of the insurance contract and/or on other grounds, which the insurer will be required to defend.

Whilst current statistics suggest that around 70% of these kinds of disputes are settled during the course of the litigation and mediation process that occurs before going to trial, given the protracted nature of the process and the potentially high legal costs associated with it, you would be well advised to use the services of a fixed price fee lawyer. Doing so provides more peace of mind about costs, and also helps ensure that the momentum of the action is maintained.

In summary, for the quickest and cleanest result, when submitting an important insurance claim, get help from a fixed fee lawyer.

Leave a comment

 

Pitfalls of Construction Adjudication
Friday, April 11th, 2014

lesb

By Les Buchbinder, Director at Bowen Buchbinder Vilensky Lawyers

11 April 2014

 Disputes are more common in the building and construction area than in most other sectors of the economy.  Poor workmanship, time constraints and demands for payment for extras falling outside of an original contract, are just a few of the typical reasons for disputes.

When the WA Government passed the Construction Contracts Act in 2005, the aim was to enable disputes to be fast-tracked through an Adjudication process, rather than for disputing parties to have to wait to go to Court.

While Adjudication has been a great step forward in many ways, there is one major pitfall: if a claim is made against your organisation, you have only fourteen days to respond.  These are calendar days, not business days, and no concession is made for public holidays.  For example, if you receive a claim on 22nd December, you have until the 5th of January to respond.

The short response period may not always be a problem, at most times of the year, and for simple cases.  But it’s a very different matter in disputes which involve major construction project payments or where there are significant factual or legal complexities involved, and these need to be dealt with  unexpectedly when key staff are on leave.

My advice to companies which may find themselves having to respond to Adjudication claims is threefold:

1. Put in place procedures for making your organisation aware, as soon as practicable, of a claim for Adjudication having been served and for dealing with it swiftly.  This may involve educating staff as to the processes involved and the importance of the timeframes under the Act as well as having contingency plans in place as to how the response is to be dealt with if, for example, critical staff members are absent or there is a risk that a claim for Adjudication may be served just prior to or over a public holiday period or when for some other reason the business may be temporarily closed.

2. Get your documentation/software in order. As a Respondent, it is up to you to supply the Adjudicator with a copy of any relevant documents in support of your response.  Most often this happens by email.  The onus falls on you to make sure that documents are delivered to the Adjudicator in a way that they can be opened and read (compliance with Electronic Transactions Act 2011 (WA).  It seems incredible, but there are situations where Respondents fail simply because the documents they thought they had delivered to the Adjudicator either never arrived, or could not be opened by the Adjudicator.  If you don’t get your documentation and software in order, your side of the story may simply never be heard.

3. Take legal advice  The detail of a claim or response is critical.  The very wide range of contracts used in the construction industry today underlines the importance of looking at each case individually.  The best time to get legal advice is before offering or signing a contract.  The next best time is the moment you suspect there are grounds for a dispute!

Leave a comment