Alison and James had been married but separated about 20 years ago and remained good friends, often travelling overseas together. While on an overseas trip, James had a major heart attack. Alison and James abandoned the pre-paid trip. Alison accompanied James to the hospital, staying with him, speaking to the insurer and the medical team at the hospital on James’s behalf.
Fortunately, Alison and James had travel insurance. The insurer paid for all James’s medical costs and for the additional accommodation and travel costs needed to bring them home.
When Alison returned to New Zealand, she reflected on the way the insurer had handled the claim. Alison contacted the insurer and said she was disappointed that she had lost the trip of a lifetime and asked for some compensation to make up for her loss.
The insurer replied that the policy did not cover loss of enjoyment, and declined Alison’s claim. However, the insurer did agree:
- to reimburse the two nights of the tour that Alison had spent in a lazy boy chair at the hospital
- that it could have communicated better with Alison while she was overseas and offered to refund the $200 policy excess charged.
Alison did not accept the insurer’s offer and referred her complaint to FSCL.
Dispute
Alison said the insurer should have known that she and James were travelling companions only and felt the insurer had just assumed that she would be happy to care for James without exploring the option of her continuing with the trip.
Alison stepped into the role of James’s carer, advocating for him. Initially the insurer had suggested that James fly home in economy class with a six-hour layover in a busy international airport. As a result of Alison’s intervention, and the kind offer of Alison’s travel agent to pay the cost of one night’s accommodation, the insurer eventually agreed that Alison and James could break their flight and rest before embarking on the long flight home. Shortly after arriving back in New Zealand James had another heart attack, requiring further surgery. Alison considered that the insurer had overestimated the level of James’s recovery and if it had not listened to her, the outcome for James may have been much worse.
Alison was also very dissatisfied with the way the insurer had communicated with her. Alison did not have a phone and could not call the insurer. Instead she would message her daughters in New Zealand and ask them to tell the insurer to call her. There were times when the insurer undertook to call at a particular time and Alison would sit beside the telephone waiting for a call for hours, terrified that if she left the hotel room to get food or medicine, she would miss the insurer’s call.
The insurer responded that it did not know Alison and James were no longer married. In the telephone conversations with Alison, she referred to James as her husband. The insurer considered it was entitled to consider Alison as James’s accompanying person and said its staff had advised her appropriately. The insurer said that if Alison had asked to continue with the tour, it would have made arrangements for her to do so and find another person to act as James’s accompanying person.
With respect to the travel plans and communication with Alison, the insurer said that it worked with her to find the best way for them to travel home. Often a lot of work was happening in the background with travel agents trying to find an option that would work. The insurer did accept that there was a 42-hour period during which it had failed to communicate with Alison, and offered to refund the policy excess as an acknowledgement of this failing. However, with respect to the failure to return calls at a specific time, the insurer explained that Alison was dealing with its emergency team. James was in no immediate danger and staff had to prioritise calls.
Review
We reviewed the policy, and confirmed that the policy excluded cover for lost enjoyment. We also advised Alison that we considered the insurer was entitled to treat her as James’s accompanying person. The policy was in both names, but listed only James’s address and Alison did indeed refer to herself as James’s wife.
However, the policy allowed for:
- covering the accommodation and travel expenses for an accompanying person and
- compensation for pre-paid travel and accommodation lost as a result of unforeseeable circumstances beyond the insured’s control.
While the insurer had covered Alison’s costs, as James’s accompanying person, and had refunded two nights of the tour while Alison was sleeping at the hospital, it declined to reimburse the further five nights of the tour that Alison had lost while making arrangements to return home.
The insurer agreed that there was nothing in the policy preventing Alison from claiming compensation under two different clauses, but it felt that by doing so she would be unjustly enriched because she would be paid twice for the same accommodation.
We did not agree. Unjust enrichment means that a person unfairly gets a benefit by chance, mistake or another’s misfortune for which they have not paid or worked for and it would be morally and ethically wrong for them to benefit. In other words, the enrichment must be unjust. Alison had swapped a bus tour for first sitting by a hospital bed, then basic hotel accommodation. It did not seem to us that she was being unjustly enriched.
The insurer also said that it aimed to return Alison to the position she would have been in before the event giving rise to the claim took place. Before James’s heart attack, Alison was sitting on a bus looking forward to accommodation and travel she had paid for and not yet used. It was our view that by compensating Alison for the portion of the tour she was unable to experience, the insurer was returning her to her pre-event position.
It was also our view that the compensation paid under the accompanying person clause related to James’s claim, while the claim for the lost tour costs related to Alison’s claim in her own right.
Having listened to the calls between Alison and the insurer, we considered the insurer was aware of the anxiety and stress Alison was experiencing. James had had a serious health scare and while the doctors were satisfied he was fit to fly, they also said he would need further treatment once he returned to New Zealand. Alison advocated strongly for James, and she was right to be concerned. Shortly after returning to New Zealand he had a further heart attack.
We were mindful that Alison was already in a very stressful situation, but we considered the insurer contributed to the stress. There were three occasions where the emergency team gave Alison a time to call, and failed to do so. We also noted that there was a collect charges number that Alison could have used to contact the insurer, but it did not suggest she try the number.
Resolution
We proposed to recommend that the insurer accept Alison’s claim for the lost portion of her bus tour (about $1,500) and pay a further $300 as compensation for the inconvenience and stress caused by the communication difficulties. Both parties accepted our proposal and the complaint was resolved.
Insights for complainant
If you are left with a sense of unease about a claim, and feel that the result was just not ‘fair’ let us know. We will tell you if the insurer has paid all it is obliged to under the policy and sometimes there may be a provision for compensation that has been overlooked.
