Effectively, the class action has been ‘stayed’ for nearly two years while the lawyers argue about whether the action may proceed as a ‘representative action’ under the High Court Rules. Sadly, rather than simply letting the courts get on and manage these proceedings as it may see fit, Southern Response has chosen to argue about the issue. The group sees this as just another cynical way for the insurer to put off its day of reckoning. Nevertheless, despite delays to this point, Southern Response’s strategy to minimise policyholders’ claims will be back before the Court of Appeal on 5 July 2017.
Christchurch citizens have become familiar with the American phrase ‘delay, deny, defend’ which has been used to describe insurers’ tactical response to volume claims, in the wake of other natural disasters. In Christchurch, many Southern Response policyholders became concerned that perhaps their insurer might be applying such tactics but realised that the only way to evidence application of a strategy to minimise claim pay-outs, would be to show the insurer’s pattern of conduct across many claims. For that reason, and because they couldn’t afford to litigate on their own, they formed a group.
The Group anticipates that as the Supreme Court has already made it clear that ‘access to justice’ is a critical consideration when considering whether an action may proceed as a ‘representative’ action, the Court of Appeal will permit the Group to proceed in the courts and bring its evidence of the insurer’s strategy.
Therefore, the Group anticipates that with trial now looming much closer, it’s time for those who haven’t yet joined the action to at least register their interest.
We urge you to do so because should Southern Response not want its strategy to minimise policyholder’s claims to be examined by the courts, the case may settle.
IF THE CASE WERE TO SETTLE BEFORE COURT AND YOU ARE NOT IN THE ACTION, NEITHER THE GROUP NOR THE CURRENT PROCEEDINGS CAN HELP YOU.
Registration doesn’t mean you have joined the class action. Instead, registration simply ensures that we can contact you as soon as the Court of Appeal has delivered its judgment. At that point you will receive full information about the options going forward.
To register, send your name and contact details to: email@example.com
In considering whether to now register, carefully consider whether some or more of the following applies to you.
[In isolation, some of the following may not automatically constitute a breach of the policy or the insurer’s duties and obligations (although many of them will). In combination, some will evidence the central allegation in the present court proceedings that: Southern Response adopted a strategy designed to systematically reduce the cost of meeting the claims arising out of the Canterbury earthquakes below its true liability].
- SR has not settled your claim;
- SR did nothing on your claim until EQC decided it was ‘over-cap’;
- SR asserted that it had the right to control your repair or rebuild;
- SR failed to complete a damage assessment or carried out an incomplete assessment;
- SR asserted that any amount that it elected to pay to settle claims was limited to what was set out in a Detailed Rebuild/Repair Analysis (DRA);
- SR hasn’t given you the DRA ‘Back Sheet’ (detailing the actual costs, rates, calculations underpinning the DRA) or it has refused to give you the Back Sheet;
- SR refused to supply you all relevant expert or other information in its possession with the result that you were unable to make a fully informed decision about a settlement offer;
- SR made a settlement offer even though it hadn’t obtained any, or sufficient, expert information before making the offer;
- SR made an insufficient damage assessment and recommended minimal repairs but later changed its position when you obtained independent advice;
- SR asserted that if you didn’t actually repair or rebuild, it would only be obliged to pay you an ‘indemnity payment’;
- SR advised that you were only entitled to remediation work to ‘MBIE guideline standards’ or that it applied some standard other than ‘as new’;
- SR advised that your foundations need only be repaired to the standard contemplated by the Building Code and/or MBIE Guidelines;
- SR provided an interpretation of MBIE guidelines, building codes, or the law which you consider was directed at minimising the repair solution;
- SR sought your signature on a Memorandum of Understanding as a prerequisite to settlement;
- SR sought a Settlement Election Agreement from you and/or special conditions before it would settle;
- SR gave you a DRA which understated what you believe your entitlement was under the policy;
- SR gave you a DRA that excluded important categories of cost including contingencies, project management and professional fees;
- SR gave you a DRA that was materially different to the one it held on its file;
- SR gave or represented values that differed from the values you’d independently obtained;
- SR’s DRA was prepared with either, a lack of expert advice in SR’s or, deficiencies in the nature of that advice;
- SR did not brief experts correctly;
- SR refused additional accommodation costs beyond what the policy requires even though SR caused the additional delays;
- SR made inconsistent or inaccurate interpretations of the policy which have the effect of reducing what you consider you are entitled to under the policy;
- SR told you the home is ‘a repair’ when you have reasonable grounds to believe it may be ‘a rebuild’;
- SR threatens to move a ‘rebuild’ claim back to a ‘repair’ if you insist on questioning the DRA figure or indicated that you wanted to obtain independent legal or expert advice;
- SR disputes the proper foundation height (given flood or other issues);
- SR has not calculated the GST correctly as between the DRA and a settlement offer;
- SR has omitted the ‘builder’s margin’ from any calculations;
- SR has changed (often many times) the Claims Manager and/or Project Manager;
- SR has claimed a right to elect whether it will make you a cash payment in settlement of your claim;
- SR informed you that if you elected a ‘buy another house’ option, the only sum available to you to make that purchase, was the sums stated in the DRA SR had supplied;
- SR required a copy of the Agreement for Sale and Purchase before it would permit you to buy another house, and/or to settle the same;
- SR insisted in being reimbursed for costs to implement a policy option you were given;
- SR sought to control demolition of the home;
- SR required that Arrow International manage any building work;
- SR advised that you were required to use a sub-contractor appointed by SR and/or Arrow International;
- SR specified that any builder or contractor you wanted to use, had to first be ‘pre-approved’ by it;
- SR insisted that you had to use a standard form building contract that it had prepared;
- SR insisted that Arrow had to set the scope of works;
- SR insisted that it had to sign the building contract;
- SR claimed the right to adopt a different form of settlement to one that might have been agreed;
- SR unilaterally proceeded to obtain a building consent or took steps that were not first agreed with you;
- SR insisted that you had to abide by its ‘Replicate to Policy’ or its ‘Flexi-build’ position;
- SR advised that if you settled for a cash payment you were only entitled to the market value of your home on a ‘depreciated replacement cost’ basis;
- SR told you that that the home was a repair while holding on its file a DRA or other information that recorded the home as being a rebuild;
- SR supplied a DRA recording a ‘contingency’ allowance at a particular level but when later it made an offer to settle, that offer only provided for a much reduced contingency allowance;
- SR has deducted, or has sought to deduct, ‘SR incurred professional fees’ from its settlement offer;
- SR has not communicated in a timely manner;
- SR provided oppressive or unfair terms in a settlement contract, or supplied terms that were contrary to those that had been earlier agreed in settlement discussions;
- SR advised that you should accept the insurer’s offer or face the offer being withdrawn with the consequence that the insurer will then utilise a ‘builder’s quote’ to assess the true value of your claim;
- SR has actually withdrawn an offer and has then advised that it now relies on a much lower claim value, as a result of obtaining a ‘builder’s quote’;
- SR has refused to reopen a claim when presented with new evidence;
- SR has provided you with misleading and/or deceptive advice of any kind;
- SR doesn’t inform you of major developments or changes that were integral to the repair or rebuild of your home;
- SR failing to keep proper records of claim progression
- SR fails to, or incorrectly briefs experts;
- SR under-scopes a rebuild cost when a claim moves from repair to rebuild;
- SR prescribes and / or completes non-compliant repair work;
- SR abandons an agreed resolution process;
- SR ignores the joint agreement of experts;
- SR refuses to permit expert conferrals to take place;
- SR refuses to engage with independent QS or other expert evidence that you have obtained;
- SR pressures you to avoid engaging further experts on the grounds that SR doesn’t want you to incur further costs;
- SR refuses to consider independent expert evidence that conflicts with SR’s position;
- SR otherwise acted in a manner that you consider was unfair or unreasonable, misleading or deceptive, didn’t accord with the policy, was not in good faith, or in accordance with best practice in any particular.