So I finally managed to get all the documents I needed to complete the insurance investigation into my stolen motorcycle collected and sent off last week. Yay.
On monday they call and say "we will give you the agreed value, minus excess's and remaining premiums"
I say "what about the expenses due to delay in payment?"
"for the paperwork yes, interest on your loan no"
So we exchange a few points about stuff, mostly they want to deduct as much as they can, I dont think i should have to pay for insurance after my bike was stolen and they should pay for interest on the loan due to the time they spent investigating the theft.
Timeline:
4th Dec: Informed them of stolen bike (I was away the week before so not sure exactly when it was stolen)
5th Dec: recieved email of paperwork to claim
6th Dec: sent of paperwork to claim. Informed there will be an investigation because I was claiming money not replacement bike and it was standard practice for them for ammounts over 5k.
5th Jan: met with claim investigator, he would not meet me after-hours or on weekends/public holidays because "I dont work then." Returned my keys to them (something I was very angry about, since they hadnt even agreed to pay me out yet), told the investigation was because asking for money when you dont have alternative transport seemed iffy, also leaving the bike parked in the street when im away for a week and have a garage seemed iffy. given list of things to return to them:
-Criminal history check
-Driving history check
-phone records for the week before
-copy of finance records from bank
-certificate of registration
-copy of drivers license
-copy of expenses for items above
-renewal notice of insurance
Started collecting documents. Some (Driving history, Registration, drivers license i had in the first week.) others took me a long time to get.
about 12th Jan: rang up to enquire about continued premiums being deducted from my account, told "we need to do that in order to keep your claim in the system, usually refunded after all the claims are sorted out".
17th Jan: I was rung a follow up about paperwork. I told them I was still collecting documents.
18th-20th Jan: sent request for Crim history check
Got rest of documents over next 3-4 weeks, needed to wait till days when I wasnt working/studying to do so, as can only go by public transport/pushbike, it was a pain.
21st Feb: rung again for follow-up, still hadnt recieved Criminal history check
~12th March: Got last of documents, wrote letter explaining expenses as I saw them: ie cost of crim history/driv history and ~2/3 time since start of claim in interest on loan
14th March: Sent copies of all documents.
18th March: Received offer of settlement minus excess and outstanding premium. reimbursed for Criminal history check and driving check. Not for interest on the loan.
20th March: Sent legislation backed letter requesting total reimbursment of expenses and that i didnt want to pay last 6 months of insurance premiums. Legislation ref (Insurance Contracts Act 1984 - Section 57.1 ) and (The Australian Securities and Investments Commission Act 2001 – Sect 12bf.1 & Sect 12bh)
22nd March: rejected, but told can accept initail offer while maintaining dispute about the difference
4th April: recieved 22nd March's offer in writing
10 April: Sent counter letter stating more or less the same as on 22nd, pointing out they didnt say why they were entitled to ignore those legislations, plus ref (Insurance Contracts Act 1984 section 52.1).
no response yet, although on 22nd March, told it would take 15 business days for a response by the internal disputes panel.
Refernces:
Insurance Contracts Act 1984 section 52.1 "Where a provision of a contract of insurance (including a provision that is not set out in the contract but is incorporated in the contract by another provision of the contract) purports to exclude, restrict or modify, or would, but for this subsection, have the effect of excluding, restricting or modifying, to the prejudice of a person other than the insurer, the operation of this Act, the provision is void."
Insurance Contracts Act 1984 - Section 57.1 “Where an insurer is liable to pay to a person an amount under a contract of insurance or under this Act in relation to a contract of insurance, the insurer is also liable to pay interest on the amount to that person in accordance with this section. “
The Australian Securities and Investments Commission Act 2001 – Sect 12bf.1 “(1) A term of a consumer contract is void if: (a) the term is unfair; and (b) the contract is a standard form contract; and (c) the contract is: (i) a financial product; or (ii) a contract for the supply, or possible supply, of services that are financial services.”
Investments Commission Act 2001 – Sect 12bh Examples of unfair terms, subsection 1.c states “a term that penalises, or has the effect of penalising, one party (but not another party) for a breach or termination of the contract;”
Key points from the letter:
They initiated the investigation (without real just cause since the police, who actually have a legal right to disbeleive you, whereas a company has NO right since its not an official part of societal regulation, but a socail user) so they have to cover the costs. I was fine(ish) with their investigation, becuase i thought i wouldnt be financailly put out(anymore than i was by loosing my bike) because they would pay the difference. Then they said they wouldnt, i am very annoyed at that.
The point about 52.1 is that even if not included in the product disclosure, any provisions within Insurance Contracts Act 1984 still count within a contract of insurance. Meaning even though it wasnt in the PDS that they would pay the interest explicitly, the inclusion of 57.1 in Insurance Contracts Act 1984 makes it an implicit provision.
There were two points relating to ASIC 2001 12bf.1 (the first was of type bh.1.c): that unfair terms in the pds are void. There were provisions to cancel the contract on my behest and on theirs (relatively equitable, ie they refund the rest of the year). But i am not allowed to cancel the contract after a total loss claim (they payout and then they cancel the contract without paying me out the remainder of the year). Hence unfair terms, because i am financially penalised by subtracting from agreed value the refund I would have got without a total loss. The second point was that the pds make the implicit claim that the contract is pro rata calculated for me terminating early, but a singular entity in the case of a total loss payout. meaning they change the nature of the offered financial service to favour themselves financially.
Anyway, I also made some other points about other companies continuing contracts on new vehicles after total loss claims to counter their claim that it was an industry standard (apparently aami will transfer the contract to the new vehicle for you). I understand them keeping the insurance for the time already past, otherwise you would cancel on the last day, get a full refund and use that to pay the following year. But they cant have it both ways.
I also pointed out that while I have used both examples from industry, their own behaviour (they paid part of the reimbursment even tho the pds doesnt mention it), their own company policies (as worded in the pds, which doesnt exclude reimbersement for interest earned after a claim is made) and legislation to make my points, they are only hiding behind company policy in their refusal to pay, which has no legal merit anyway...
But they have the money I want and possession is 9/10 the law...
An update: 2/5/12 their "independant" internal review rejected it as well... Tomorrow I will call the ombudsman to take it further... the only thing is I cant interupt my study over the next two months to waste time with this, but i dont want to let it go... companies steal too much money off consumers as it is.
As a side note, apparently it is illigal to sell the empty xbox carton on ebay for $500 (even tho you ex). The state as a vested interest in ensuring some semblance of "intrinsic" value in a product... just somethink to think about in relation to this issue.
I can almost understand anarchists. It seems like the system is set up to favour the haves... even after they pay out, they pay the bank loan first, then me second. just like when banks go bust, you stil have to pay your house loan even though they dont pay you your savings back... It gets me so angry.
It almost makes me feel like as an individual, since they system is not set in our favour, its our moral imperitive to seek every advantage we can over the companies, in as much as we can, becuase they can simply by being a company. (there is logic there, i just cant word it well at the moment, ill try a again another day)
Update: so suprise suprise, the "independant" internal review by senior management has rejected my claim as well 02/05/12. So tomorrow i will call the ombudsman. I dont want to waste time with it at the moment. since i need to do stuff with my masters, but i also dont want to let it go. Im tired of companies stealing through legislated means.
On a side note, apparently it is illigal to sell xbox cartons on ebay for $500 (even though it says its just the carton on the sale page). Something to do with the state having a vested interest in maintaining a semblance of "intrinsic" value of a product. Just an interesting point in relation to financial services.
Also, while it makes me angry that companies are jerks, i still beleive in the moral imperitive of companies to seek most profit for their shareholders etc. Afterall they are caretakers of someone else's money. But i believe this imperitive is also intrinsic for individuals. and that these two imperitives are antagonistic and competative... or maybe i dont... i cant decide... "everyone is a socailist at 20 or they have no heart, and everyone is a capatilist at 30 or they own no home"
