Insurance Coverage & Litigation

A business buys insurance so that a particular loss, or a particular claim against it, becomes the insurer's problem rather than its own. When the insurer declines indemnity, reserves its rights, refuses to fund a defence or offers a fraction of the loss, the policy stops doing that job at the moment it matters most. GopherWood Lawyers acts for policyholders in those disputes: companies, directors and officers, builders and contractors, financial services licensees and business owners.

Insurance coverage disputes are a narrow field within commercial litigation, and most of the lawyers in that field act for insurers. Few firms in Australia act for policyholders when an insurer declines, delays or reduces a claim. Our senior lawyers have acted for insurers, and that experience gives us a first-hand appreciation of how underwriters and claims handlers assess claims: what they look for in a notification, when a reservation of rights is a genuine position and when it is posture, and how far a declinature is likely to withstand scrutiny. For policyholders, that appreciation is a real advantage. We present coverage positions in the terms insurers respond to, anticipate the arguments the insurer's claims team will run before they are made, and use that understanding to resolve disputes earlier, or to litigate them with greater force where resolution is refused.

Coverage disputes turn on the words of the policy read against the facts of the claim, but the words are only half the picture. The Insurance Contracts Act 1984 (Cth) overrides many policy terms. It implies a duty of utmost good faith into every contract it governs, limits an insurer's ability to refuse a claim because of something the insured did or failed to do after the policy was entered into, controls the remedies available for non-disclosure and misrepresentation, and protects insureds who notify facts before a claims-made policy expires. An insurer's declinature letter often states a position that the Act does not allow it to hold.

We act in coverage disputes under liability policies (professional indemnity, directors and officers, management liability, public and products liability, construction and financial institutions covers) and first-party policies (property, business interruption, contract works, crime and fidelity). The work ranges from responding to a reservation of rights, through internal dispute resolution and the Australian Financial Complaints Authority, to proceedings for declarations and damages in the Supreme Court of New South Wales, the Federal Court of Australia and courts across Australia.