personal injury query

gavindublin

So I have started a claim against a workplace for an accident there. 2 claims, one against agency I was working for, one against shop which premises it happened. I have a solicitor and she everything on track.
The shops insurance company has spoken to my solicitors, said liquidation is very close. My solicitor has said this could seriously affect proceedings.

I'm lost to the reason as why. The claim happened over a year ago, so I would think of the policy having been updated or a new year started. In my own terms I am thinking if I crash my car, then cancel my policy the next day, I was still insured at the time..

Is this too simple of an approach to this?

Thanks for reading

mlumley

I'd have thought that the insurance held at the time of the accident would cover you. That was the covering period of the policy.

Go find a new solicitor. Going bust does not as far as I know, let the insurance co of the hook.

Try one of the no claim no fee co's.

Do not under any circamstances let the Injuries Board settle you clain.

Have a look on their site, they state that most claims settle for UP TO 20.000.

That is, about 90% of them.

Wait and go to court. You'll do better. I wish I had, but I needed the money.

No win no c laim have to work for their money.

PM me for a contact.

Good luck.

Pkiernan

Is it the shop itself, or the shops insurance company that is close to liquidation?

gavindublin

It's the trading shop who are claiming this

ResearchWill

There are only two things I can see may effect you, the first is the insurance company is in fact saying the policy was not in effect (I doubt it's that one as why then would they be dealing with your solicitor.) The second is there may be a very high excess, I have head of in certain industry excess for public liability being in excess of €50k, €2k to €10k being the norm.

If it is the excess issue, I really don't know if that would let the insurance company off the hook. Best bet is to ask your solicitor exactly why, the shop going bust may effect the claim.

Reloc8

OP is saying that he is being advised the defendant/respondent may be about to go into liquidation...nothing about excess ?

Anyway, OP ask your solicitor to explain Section 62 of the Civil Liability Act 1961 to you.

The defendant/respondent to your claim going bust does not help and makes everything more complicated (and expensive) but you are not left without recourse if a) your claim is a valid one and b) the insurance in place is/was otherwise good. A number of steps have to be taken however to get the benefit of S. 62.

ResearchWill

Reloc8 wrote: »

OP is saying that he is being advised the defendant/respondent may be about to go into liquidation...nothing about excess ?

Anyway, OP ask your solicitor to explain Section 62 of the Civil Liability Act 1961 to you.

The defendant/respondent to your claim going bust does not help and makes everything more complicated (and expensive) but you are not left without recourse if a) your claim is a valid one and b) the insurance in place is/was otherwise good. A number of steps have to be taken however to get the benefit of S. 62.

How do you know the issue is not one of excess, the OP has said nothing either way. Section 62 only stops any payment of insurance to a third party going into the property of a bankrupt insured. It does not deal with an issue where the claim amounts to 100k inc costs and there is an excess of 50k then under the indemnity the insurance company may only pay out 50k and let the claimant sue for the remainder. To be honest I don't know if this is the case but it's the only thing I can think of. The OP is not suing the insurance company he is suing the business, the insurance has provided noting more than an indemnity.

gavindublin

Thanks for the input lads.

Solicitor is away on hols, so still can't get an answer to the question yet. Will keep updated though.

Anymore input is greatly accepted

Flincher

mlumley wrote: »

Have a look on their site, they state that most claims settle for UP TO 20.000.

That is, about 90% of them.

Wait and go to court. You'll do better. I wish I had, but I needed the money.


Good luck.

Actually 65% of awards made by the Injuries Board were under €20,000 in 2011.

Considering we all know fairly little about the OP's claim, I don't think anyone is in a position to tell somebody not to accept an Injuries Board award. I don't have great faith in them, I get the feeling there's a blindfold and a dartboard involved somewhere in their awards process, but every now and then they get close enough to the correct level of damages.

We've received in a fair share of decent awards over the last few months. I definitely wouldn't be telling people not to accept an award under any circumstances. There's no guarantee that you will do better in Court.

gavindublin

An assessment isn't an option now. They've passed it onto the company with the 90 optiondays. So those 20 big ones ain't an option for me just yet!

McCrack

Flincher wrote: »

Actually 65% of awards made by the Injuries Board were under €20,000 in 2011.

Considering we all know fairly little about the OP's claim, I don't think anyone is in a position to tell somebody not to accept an Injuries Board award. I don't have great faith in them, I get the feeling there's a blindfold and a dartboard involved somewhere in their awards process, but every now and then they get close enough to the correct level of damages.

We've received in a fair share of decent awards over the last few months. I definitely wouldn't be telling people not to accept an award under any circumstances. There's no guarantee that you will do better in Court.

If the right tactics are adopted at the outset one can minimise PIAB's Assessments. At the end of the day get an application in and get it out with as little information and cooperation to them.

The Injured Party is then protected as far as possible vis a vis the 2003 Amendment Act.

Kosseegan

gavindublin wrote: »

The shops insurance company has spoken to my solicitors, said liquidation is very close. My solicitor has said this could seriously affect proceedings.

I'm lost to the reason as why. The claim happened over a year ago, so I would think of the policy having been updated or a new year started. In my own terms I am thinking if I crash my car, then cancel my policy the next day, I was still insured at the time..

Is this too simple of an approach to this?

Thanks for reading

The insurance compnay will not pay up after an insured company has gone into liquidation. The insurance companys contract is with the compnay to indemnify it against the award of damages and costs of the claim. Once the company is in liquidation the contract is at an end. It is different with motor insurance because of specific provisions in the Road Traffic Act.

ResearchWill

Kosseegan wrote: »

The insurance compnay will not pay up after an insured company has gone into liquidation. The insurance companys contract is with the compnay to indemnify it against the award of damages and costs of the claim. Once the company is in liquidation the contract is at an end. It is different with motor insurance because of specific provisions in the Road Traffic Act.

Can you give some case or statute Law to back your assertion.

Just this UK lawyer seems to disagree with you, http://www.hinchliffes.co.uk/news/whether-claims-can-be-made-against-companies-in-liquidation-or-no-longer-trading/

I have also seen cases where liquidated companies have been sued for PI and insurance companies pay up.

Also McGarr Solicitors would disagree with you, http://www.mcgarrsolicitors.ie/tag/damages/

From the above page

"THURSDAY, MARCH 12, 2009
Insolvent employers
TAGS: COMPENSATION, DAMAGES, INJURIES BOARD, INJURY
It is a source of additional worry (above the prospect of unemployment) to employees who have been injured at work, to find that their employer is insolvent.

The reason for that lies in the fact that, in Ireland, only a party (the employer) to employers’ liability insurance may sue an insurance company for an indemnity in respect of a claim made against the employer.

In addition, in the general law of insurance, any money paid to the insolvent employer by the insurance company would become the property of the insolvent company and would be swallowed up in the insolvency.

To avoid this, the Oireachtas legislated in Section 62 of the Civil Liability Act 1961;

62.—Where a person (hereinafter referred to as the insured) who has effected a policy of insurance in respect of liability or a wrong, if an individual, becomes a bankrupt or dies or, of a corporate body, is wound up or, if a partnership or other incorporated association, is dissolved, moneys payable to the insured under the policy shall be applicable only to discharging on full all valid claims against the insured in respect of which those moneys are payable, and no part of those moneys shall be assets of the insured or applicable to the payment of the debts (other than those claims) of the insured in the bankruptcy or in the administration of the estate of the insured or in the winding-up or dissolution, and no such claim shall be provable in the bankruptcy, administration, winding-up or dissolution.”

As a consequence of the Section a liquidator holds the money in trust for the insured employee and should pay it directly to the employee in the appropriate circumstances."

Kosseegan

ResearchWill wrote: »

Can you give some case or statute Law to back your assertion.

Just this UK lawyer seems to disagree with you, http://www.hinchliffes.co.uk/news/whether-claims-can-be-made-against-companies-in-liquidation-or-no-longer-trading/

I have also seen cases where liquidated companies have been sued for PI and insurance companies pay up.

Also McGarr Solicitors would disagree with you, http://www.mcgarrsolicitors.ie/tag/damages/

From the above page

"THURSDAY, MARCH 12, 2009
Insolvent employers
TAGS: COMPENSATION, DAMAGES, INJURIES BOARD, INJURY
It is a source of additional worry (above the prospect of unemployment) to employees who have been injured at work, to find that their employer is insolvent.

The reason for that lies in the fact that, in Ireland, only a party (the employer) to employers’ liability insurance may sue an insurance company for an indemnity in respect of a claim made against the employer.

In addition, in the general law of insurance, any money paid to the insolvent employer by the insurance company would become the property of the insolvent company and would be swallowed up in the insolvency.

To avoid this, the Oireachtas legislated in Section 62 of the Civil Liability Act 1961;

62.—Where a person (hereinafter referred to as the insured) who has effected a policy of insurance in respect of liability or a wrong, if an individual, becomes a bankrupt or dies or, of a corporate body, is wound up or, if a partnership or other incorporated association, is dissolved, moneys payable to the insured under the policy shall be applicable only to discharging on full all valid claims against the insured in respect of which those moneys are payable, and no part of those moneys shall be assets of the insured or applicable to the payment of the debts (other than those claims) of the insured in the bankruptcy or in the administration of the estate of the insured or in the winding-up or dissolution, and no such claim shall be provable in the bankruptcy, administration, winding-up or dissolution.”

As a consequence of the Section a liquidator holds the money in trust for the insured employee and should pay it directly to the employee in the appropriate circumstances."

Section 62 does not give a right to sue on a contract of insurance to a Third party. After an indemnity has been given and the insurance company is going to write a cheque the Third party is protected from the consequences of insolvency or bankruptcy.

In the English case the company has to be restored first which means there is a party to make a claim against the insurer.

PATRICK DESMOND McMANUS v CABLE MANAGEMENT (IRELAND) LIMITED RADFORD COMMUNICATIONS LIMITED AND HIBERNIAN INSURANCE COMPANY PLC

High Court Unrep Judgment of Mr. Justice Morris delivered the 8th day of July 1994

ResearchWill

Kosseegan wrote: »

Section 62 does not give a right to sue on a contract of insurance to a Third party. After an indemnity has been given and the insurance company is going to write a cheque the Third party is protected from the consequences of insolvency or bankruptcy.

In the English case the company has to be restored first which means there is a party to make a claim against the insurer.

PATRICK DESMOND McMANUS v CABLE MANAGEMENT (IRELAND) LIMITED RADFORD COMMUNICATIONS LIMITED AND HIBERNIAN INSURANCE COMPANY PLC

High Court Unrep Judgment of Mr. Justice Morris delivered the 8th day of July 1994

In the case you mention there was 3 defendants, the second was still operating and the third was the insurance company. The case against the insurance company was thrown out. From the summary "Claim made against insurers before liability of employer established - Employee's action against insurers unsustainable"

From the Judgement,

"The claim that he makes against the Third-named Defendant is contained in paragraphs 6, 7, 8 and 9 of his Statement of Claim and it is that there was in existence an employer's liability policy of insurance at the relevant date whereby the Third-named Defendant contracted to indemnify the Second-named Defendant in respect of a claim for personal injuries, loss or damage sustained by an employee in the employment of the Second-named Defendant."

Further

"(b) While Section 62 of the Civil Liability Act,1961 confers on the Plaintiff in certain circumstances a right to sue the insurance company, those circumstances do not exist in this case because the Second-named Defendant, being a corporate body, is not wound up. It is accordingly submitted that Dunne -v- P. J. White Construction Company Limited (In Liquidation) and Others 1989 ILRM p.803 has no application."

Further

"Counsel on behalf of the Plaintiff accepts that he is not entitled to maintain the proceedings pursuant to Section 62 of the Civil Liability Act, 1961 and agrees that it has no application to the present case. He bases his claim to be entitled to maintain these proceedings solely on the basis that the Second-named Defendant, in entering into the employers liability insurance policy, acted in the capacity of a trustee for the Plaintiff and that the Plaintiff is a beneficiary under the policy in which capacity he would be entitled to maintain these proceedings."


Where does this case say that an insurance company to a insolvent company can refuse to pay out based only on the insolvency of the insured company. In fact the insured company in this case was not wound up. It was still trading so any right under section 62 had no accured.

BTW the Dunne case, sets out that a employee who sues his employeer, who then goes into liqudation is covered by the Act,

From the Dunne Case,

The High Court had found " He did so on the grounds that as a matter of law the onus was on the Plaintiff, not only of establishing that a policy of insurance existed, issued by these Defendants to the first Defendant, which covered the risk of an accident, such as the accident in respect of which the Plaintiff had obtained his damages, but that there was also on the Plaintiff the onus of proving as a negative that a right asserted or alleged by these Defendants in the pleadings to rescind or repudiate the policy of insurance had not arisen. The learned trial Judge held that the Plaintiff had failed to discharge this latter onus and accordingly dismissed the claim."

"The accident in this case occurred in 1977 and proceedings were instituted in respect of it by the Plaintiff against his employers the first Defendants. In the course of these proceedings and before the action had been set down, while pleadings were being delivered, the first-named Defendants went into liquidation. Those Defendants did not further defend the Plaintiff's claim and he obtained his judgment for damages for negligence in default of a defence."

Further

"Section 62 of the Act of 1961 is specifically designed to protect an injured Plaintiff in the precise position of Mr. Dunne in this action so as to ensure that monies payable on a policy of insurance to an insured who is dead, bankrupt, and, in the case of a corporate body, who is gone into liquidation, will not be eaten up by other creditors, but will go to satisfy his compensation, and with that purpose the Section must, it seems to me, give to the Plaintiff a right to have that right enforced and protected by the Courts and that means that he has got a right to sue, as he has sued in this action."

And

The SC found "On the contrary, I think properly to implement the protection given by the Legislature in Section 62 to a person in the precise position of this Plaintiff, it is necessary that the onus of proof should be the other way. I am, therefore, satisfied that the learned trial Judge erred, that the appeal should be allowed, and that there must be a re-trial and that the matter should be sent back for further hearing on the issue, the onus being on the Defendants."

Remember you original said "The insurance compnay will not pay up after an insured company has gone into liquidation." in the Dunne case the Company went into liquidation.

Kosseegan

ResearchWill wrote: »

Remember you original said "The insurance compnay will not pay up after an insured company has gone into liquidation." in the Dunne case the Company went into liquidation.

The insurance company will only pay up if it has granted an indemnity and the claim is liquidated. All insurance companies make settlements on a without prejudice basis. The insurance company must have a defined amount of money set aside for payout before S62 kicks in. If the insured goes into liquidation before that happens the insurance company will refuse the indemnity.

.

ResearchWill

Kosseegan wrote: »

The insurance company will only pay up if it has granted an indemnity and the claim is liquidated. All insurance companies make settlements on a without prejudice basis. The insurance company must have a defined amount of money set aside for payout before S62 kicks in. If the insured goes into liquidation before that happens the insurance company will refuse the indemnity.

.

But that is not what you originaly said and what I responded too, neither is it was you said the case you quoted said. You cleary said a insurance company will not pay out on a claim against a company in liquidation. That is not the case.

I accept and agree that the insurance company only has to pay out once its insured has been found liable and an amount of damages has been set, I never said anything else. You on the other hand made a blanket statment which I believed was incorrect.

Again you have not read the Dunne case which is exactly what happened, the Plaintiff, sued, the company went into liquidation, the plaintiff got award and insurance company refused, SC said they are wrong. They might very well try and get out of paying, but as long as policy was in force when incident happened that will have to pay out, unless they have some other reason not to pay out.

See Dunne -v- P. J. White Construction Company Limited (In Liquidation) and Others 1989 ILRM p.803