The Pursuit to Defeat Underwriter Opportunism: A Comparative Analysis of Combating Misconduct in the Claims Process

Abstract

This dissertation will assess how underwriter misconduct in the claims process is combated by comparatively analyzing the jurisdictions of England and Wales and the United States of America (US). In England and Wales, assureds were previously barred from recovering damages for additional losses separate from the insurance indemnity. Section 13A of the Insurance Act 2015 has since introduced an implied term into the insurance contract that the insurer must pay claims within a reasonable time which, if breached, can amount to recovery of damages. However, this thesis will challenge whether the reforms and current regulatory practices provide adequate protection of assureds. In doing so, it will affirm the need to disincentivise the insurer from exploiting the imbalances inherent to the insurance contract that lie in their favor. Conversely, operation of American insurance law is significantly more assured- friendly. Specifically, legal actions and remedies for breach of contract, good faith, and statute are permitted, argued to satisfactorily safeguard the assured’s interests. This includes the controversial ability to recover punitive damages in cases of flagrant insurer misconduct. Ultimately, this thesis will suggest English law borrow specified elements of American law to strengthen regulation of the insurance industry and defeat underwriter opportunism.