This article was contributed by a reader. The Real Recovery is not providing legal advice in any way and articles written by us or by contributors are not to be taken as legal advice. We strongly advise readers seek legal advice from their lawyers.
Taking your quake claim dispute to Court
If you have been obstructed by your insurer in your insurance claim, the Christchurch Courts have set up a special procedure to give you access to justice and call your insurer/s to account.
I have found this useful in forcing obstructive insurers to come clean and sort out my claims. If your insurer has breached its contractual or statutory obligations they will not want to have that matter before the courts.
They are in many cases, in my opinion, using the fact that many of us do not feel confident to approach the legal system, at least without using a lawyer, which in turn is both expensive and stressful.
Much of the behaviour of insurers these last few years is unlawful and in blatant breach of their obligations as your insurer.
However, most lawyers are very reluctant to advise or assist in taking legal action in these cases...it is simply the case that most lawyers depend upon the insurers, banks and govt departments to conduct their everyday conveyancing and other bread and butter business, and they do not wish to 'get off side' with these powerful bodies.
However, there comes a point where your rights, life savings and justice are at stake. It is the intention of the special procedures that the Chch Courts have established to give you the ability to access justice.
The process of taking your own legal action against your insurer may seem a daunting one, and surely is. ..but it can be an empowering thing too...lets hope we don't need to do it often though! If you have the documents, and time, and will to, it is feasible and not expensive in many cases.
The process of lodging a claim against your insurer is relatively simple.
The form is available online at http://www.justice.govt.nz/courts/civil/forms#1
The process is to initially lodge a claim against your insurer, stating clearly what they have done, or not done, and how it breaches their obligations toward you.
In many cases insurers are delaying/refusing/reassessing claims based on feeble and unjustified grounds
In many cases they will not release information they hold, that puts you at a disadvantage. If your insurer is either EQC or Southern Response, try the Parliamentary Ombudsman first if it is simply information you require.
If your insurer is a privately owned company you can try the Insurance and Savings Ombudsmans Office first, but remember they are funded and designed by the private insurers and often a waste of time.
If the above steps have failed, consider lodging a 'Statement of Claim' with the District Court, from the forms at the link above.
You need to read up on what legal basis you are making oyur claim and specify thisin your claim.
Your claim may be for-
1- breach of contract
2- breach of statutory Duty(EQC)
3- failure to release information (Official Information Act(applies only to EQC and Southern Response)
4- Breach of good faith. Insurance contract depend upon good faith on both sides...ie both you and your insurer are honest up front and neither party obstructs the rights of the other under the terms of the contract.
Study your insurance contract and any related legislation (for example the construction contracts act, the EQC act etc Official Information act, all available online at http://www.legislation.govt.nz/default.aspx) to to decide upon what grounds your claim is to based. Once you lodge your claim with the Chch court the court will consider it and may accept it or reject it.
If they reject it they will advice why....if so, then give up, or try again! Often they will advise if it cannot be accepted and why before you have paid the $169 lodgement fee.
If they accept it you can then 'serve' the claim upon your insurer and they have 10 days to respond to your claim.
At this stage insurers will often become very focussed on resolving your claim ina way they seemed very unlikely to do previously.
A lot of what they are doing is indefensible in law. However if they do not immediately resolve your claim at this point, they must respond to you, and the court with their reasons for why they have done what they have done.
If they do this, then you can either drop the case, if you accept the reasons they have given, or proceed and provide the evidence outline you shall use IF the case proceeds all the way to court. They must then reciprocate.
If the claim/issue is still not resolved, then you may apply to the court for a the case to be heard. Or again you can drop the case, and walk away. If you proceed and apply for a court hearing, the court shall then give a date and the full case be heard, and decided on by the court.
The costs of the steps in the process are given on the Justice website and amount to less than $1000 in the unlikely event the claim goes all the way to a court case itself and is not resolved well before that, which I suggest, if you have a good case, is very likely.
There is risk in this process, that you may lose, and may be forced to pay the costs of the insurer. However if the case remains in the District Court, the maximum costs are likely to be low compared to the amounts many of us are faced with losing. In most cases it is unlikely that the insurer will want to allow things to proceed all the way to court...usually a lengthy process and is likely to resolve your claim well before it goes before the court.
This option is not one to take lightly, but it is the only option left to many of us. If we wait, as I am sure many are doing, for someone, or something, to come and rescue us and take action on our behalf, I suggest we may be waiting in vain.
Personally I have already taken the above course twice, once with full success, saving months of otherwise delays and probably cost to my equity of $50000 plus, and once, yet to be resolved.
Finally if you can find a brave lawyer who will advise you confidentially on procedure it may help, but be aware most lawyers are unfortunately, reluctant to help much...they have invested a lot in their careers and the 'old boys network' is a powerful thing.
There is probably a lot I have missed out and I'm not a lawyer so probably is illegal even writing this, but if you are willing to try and learn along the way I hope this helps.