Folan v United Super [2014] NSWSC 635

Folan v United Super [2014] NSWSC 635

By 7 June 2010 the defendants had sufficient medical information to identify the sole remaining issue: whether Mr Folan could find work matching his skills and permanent physical restrictions. A reasonable insurer should have investigated that issue by obtaining an occupational physician or therapist opinion as suggested by Dr Burrow. Allowing more than until the end of September 2010 was unreasonable, so the second defendant became liable to pay s 57 interest from 1 October 2010 until payment of the benefit.

Jurisdiction
Australia
Judgment Date
19 May 2014
Procedural Posture
Interest Application Under S 57 of the Insurance Contracts Act 1984 (cth) Following Determination of Entitlement to Total and Permanent Disablement Benefits / Procedural and Other Ruling; Question of Interest Argued After Earlier Declarations and Orders Resolved Other Matters
Outcome
Interest awarded to the plaintiff against the second defendant from 1 October 2010 until payment of the insured benefit; defendants ordered to pay the plaintiff's costs of the interest application.
Legal Topics
['interest on Insurance Claim' 'reasonable Time for Insurer to Investigate Claim' 'total and Permanent Disablement Benefits' 'insurance Contracts Act 1984 (cth) S 57']
['insurance Law' 'superannuation' 'equity'] ['interest on Insurance Claim' 'reasonable Time for Insurer to Investigate Claim' 'total and Permanent Disablement Benefits' 'insurance Contracts Act 1984 (cth) S 57']

Case Brief

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Procedural Posture

Interest Application Under S 57 of the Insurance Contracts Act 1984 (cth) Following Determination of Entitlement to Total and Permanent Disablement Benefits / Procedural and Other Ruling; Question of Interest Argued After Earlier Declarations and Orders Resolved Other Matters

Legal Issues

  1. 1 ['From what date interest should run under s 57 of the Insurance Contracts Act 1984 (Cth) on the insured benefit payable to the plaintiff.' "What was a reasonable period for the insurer to investigate and determine its position on the plaintiff's TPD claim." "Whether the defendants' investigations justified withholding payment beyond the end of September 2010."]

Ratio Decidendi

By 7 June 2010 the defendants had sufficient medical information to identify the sole remaining issue: whether Mr Folan could find work matching his skills and permanent physical restrictions. A reasonable insurer should have investigated that issue by obtaining an occupational physician or therapist opinion as suggested by Dr Burrow. Allowing more than until the end of September 2010 was unreasonable, so the second defendant became liable to pay s 57 interest from 1 October 2010 until payment of the benefit.

Court Disposition

Interest awarded to the plaintiff against the second defendant from 1 October 2010 until payment of the insured benefit; defendants ordered to pay the plaintiff's costs of the interest application.

Orders

  • ['The second defendant is liable to pay interest on the benefit payable by it to the plaintiff, in accordance with s 57 of the Insurance Contracts Act 1984 (Cth), from 1 October 2010 until the date of payment of the said benefit.' "The defendants are to pay the plaintiff's costs of the application in respect of...