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COVID-19: The new claims landscape

Risk & Analytics
COVID 19 Coronavirus

By Kelvyn Sampson | April 24, 2020

This article looks at the changes to commercial claims procedures as a result of COVID-19.

Business unusual

Insurance companies, third party administrators (TPAs) and solicitors have triggered their business continuity plans for reporting and responding to claims.

Businesses are having to adapt to a new reality imposed on them by COVID-19; where once many things may have been taken for granted that may no longer be the case.

The commercial and practical landscape has changed and it is therefore important to reflect on the veracity of claims procedures and strategies which are by default optimised for a normal commercial environment.

Operational claims management considerations

In the new trading environment cash generation is severely hindered, claims should be considered either as receivables or liabilities. Claim management tactics need to be assessed and aligned to the strategic goals of accelerating recovery of receivables and minimising the impact of existing liabilities.

General claims handling – casualty and motor liabilities

Impacts upon Insurers, TPA’s, loss adjusters and solicitors – service providers are experiencing an increase in restrictions of movement and working from home, whether this is in UK operational centres or offshore service centres. Most have the ability to work remotely, but this will have an impact upon service, and it is reasonable to expect that quality will be affected with workloads having to be prioritised accordingly as networks and infrastructure are impacted by global usage.
The following recommendations are suggested:

  • Use telephone contact only where this is a matter of urgency. Send all other enquiries via email, to your usual point of contact. Providers will be able to maintain a more efficient service and will be able to respond to enquiries more quickly.
  • Where possible, avoid non-urgent or routine updates on existing claims.

This is unprecedented territory and it is presently uncertain how the situation may change in the coming weeks or even months. Providers will be continuously monitoring their service and will be regularly communicating any developments.

Employers Liability and Public Liability

The enforced closure of sites will impact the ability of Adjusters and Claims Investigators to visit and conduct their investigations. Contacting witnesses and being able to verify the reliability of their statements is also going to be difficult. Similarly, it may be difficult to secure and provide copies of any accident related documentation.

Under the Ministry of Justice (MOJ) Portal process1 you will be aware that there is a limit of 30/40 days (EL/PL) to provide an admission of liability within the portal in order to restrict the third-party solicitors to the lowest level of fixed costs. As of 15 April, there has been no communication around whether the portal timescales will be relaxed.

A strategic decision may need to be made as to whether to allow claims to drop out of the portal to allow a longer (three month) investigation period and then seek relevant extensions as allowed by this process. This may help ease burdens on your resource for the short-term but in doing so could cause claims costs to increase. Consideration does need to be given therefore to a short-term versus long-term strategy.

At present it is not known what strategies are being considered to overcome this but reviewing your own system availability and storage of accident documentation to identify how easily these can be provided to Insurers is advised. Reviewing your existing claims procedures and contact your Loss Management Director to obtain a standard list of disclosure documents is also recommended.

Third Party Solicitors sending Claims Notification Forms (CNF’s) to remote closed locations – A tactic expected from Claimant Solicitors is the sending of CNF’s or other urgent post to remote, closed locations seeking timescales imposed by the MOJ reforms 2 to be missed and therefore applying for claims to fall out of the portal so that they can recover more costs.

It is going to be difficult to manage this and as advised previously there has to date been no guidance around the operation of the MOJ Portal. This will come down to how the individual organisation are checking and managing incoming post. The large majority of communication now is via e-mail and provided there is reasonable systems access for employees, incoming post can be managed. It is recommended that contact pages of your website are updated to contain the details of your Insurer or Claims Handlers with their portal ID. This will at least enable your claims handlers to raise this when it comes to the issue of costs and calling into question the Claimant’s Solicitors behaviour.

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Increase in applications for Pre-Action Disclosure – As indicated, resource issues and access issues will have implications on complying with the claims timescales and there has been no guidance around whether any flexibility will be adopted around the MOJ Portal. Therefore, it can be expected to see Claimant Solicitors seeking to take advantage and issue applications for Pre-Action Disclosure in order to recover more costs. Whilst it can be seen that the court system reducing significantly in both criminal and civil matters, a pre-action disclosure hearing doesn’t need to be an attended hearing at a court and directions and orders around disclosure could still be given. Good communication from claims handlers is key to minimise the impact, to seek extensions where necessary and to use the nominated Solicitors to resist such applications where possible.

Solicitors may also seek to issue court proceedings direct to one of your closed locations and then seek to apply for judgement if timescales are not adhered to. It is strongly recommended that authorisation is given to the nominated Solicitor, if it hasn’t already been done so, to accept service direct of any court proceedings.

Motor

There are currently no direct restrictions on driving. Businesses will still have drivers on the road until such time a total lockdown is enforced. This will be out of necessity for your business and it is inevitable that motor accidents will continue to occur. It is important to ensure that fleet drivers are aware of the accident management helpline to get assistance form and initiate the claims process.

Where vehicles are fitted with telematics and dash cams, consideration should be given to securing that information as a matter of course.

The COVID-19 situation may cause garages and hire companies to not be able to trade, which could have implications for sourcing alternative vehicles when a fleet vehicle is off the road. Vehicles may take longer to repair, and it is likely that we will see increased claims for credit hire. Loss of use claims and hire claims could increase significantly if third parties for example are unable to get their vehicles repaired. Of course, it could be argued that there is less need for the use of a vehicle in any event and this will be a consideration for your claims handlers once claims progress.

Litigation

The Association of British Insurers and a number of high-profile Claimant Solicitor firms have agreed a new extension to the Personal Injury Pre-Action Protocol as follows3:


"Extension to the Personal Injury Protocol in England and Wales: A protocol is agreed and immediately put into effect. This will involve, for a minimum of 4 weeks (until the 20 of April) with a joint review in the week commencing the 13th of April, the following:

An agreement that all limitation dates in all personal injury cases are frozen and claimants undertake to respond constructively to defendant requests for extension of time to serve a Defence;

An escalation process whereby any issue arising by a party’s failure to act in accordance with the agreement in 1. above and which cannot immediately be resolved between the parties is referred to an email and/or telephone ‘hotline’ specifically established for this situation; and

A commitment that the email and telephone hotline will be monitored regularly and referred to senior people within the respective organisations who will be able to make a swift decision as to whether the stance being taken should be adjusted in light of prevailing circumstances."


Property

Retail premises are potentially more vulnerable to theft and suspectable to other insured perils such as escape of water or vandalism due to unoccupancy and targeting of criminal activities.

For this reason, insurers must be notified where premises are to be left unoccupied and any conditions imposed to be complied with.

It is important to review your property claims procedures and ensure that there are nominated loss adjusters and clear reporting lines to insurers in the event of a loss. You should also discuss the types of events that would require a site visit, and determine future loss validation requirements against what is capable of being provided instead in the event of a loss where there is a reduced operational capacity at the insured business.

Site visits have been restricted because of the COVID-19 restrictions, however loss adjusters do have the capability to attend a loss for exceptional circumstances provided that the health and safety guidance can be adhered to. Adjusters are also looking to use technology such as video meetings and even drone usage.

Existing claims need to be reviewed and where possible early and proactive interim payment and resolution should be promoted. Insurers should be challenged about the level of validation required to accelerate payment and shorten lifecycle.

Where cashflow demands dictate it may be appropriate to consider a cash settlement rather than reinstate properties that are subject to catastrophic damage or subject to ongoing BI claims.

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The Willis Towers Watson Loss Management Team is working remotely and able to continue to deliver our claims service making use of video calls instead of face to face meetings and our analytical capability remains unaltered.

Please contact your Willis Towers Watson servicing team if you wish to receive advice regarding your insurance policies or for further risk management advice. 

Please visit the Willis Towers Watson COVID-19 website for the latest information and articles.

Disclaimer:

Each applicable policy of insurance must be reviewed to determine the extent, if any, of coverage for COVID-19. Coverage may vary depending on the jurisdiction and circumstances. For global client programs it is critical to consider all local operations and how policies may or may not include COVID-19 coverage.
The information contained herein is not intended to constitute legal or other professional advice and should not be relied upon in lieu of consultation with your own legal and/or other professional advisors. Some of the information in this publication may be compiled by third party sources we consider to be reliable, however we do not guarantee and are not responsible for the accuracy of such information. We assume no duty in contract, tort, or otherwise in connection with this publication and expressly disclaim, to the fullest extent permitted by law, any liability in connection with this publication. Willis Towers Watson offers insurance-related services through its appropriately licensed entities in each jurisdiction in which it operates.
COVID-19 is a rapidly evolving situation and changes are occurring frequently. The information given in this publication is believed to be accurate at the date of publication shown at the top of this document. This information may have subsequently changed or have been superseded, and should not be relied upon to be accurate or suitable after this date.

1 https://www.justice.gov.uk/courts/procedure-rules/civil/protocol/pre-action-protocol-for-low-value-personal-injury-employers-liability-and-public-liability-claims

2 www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_jrv

3 https://www.abi.org.uk/products-and-issues/choosing-the-right-insurance/motor-insurance/coronavirus-protocol/

Author

Kelvyn Sampson
GB Industry Practice Leader – Retail and Leisure & Hospitality

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