Harmon v Irish Life Assurance Plc
| Jurisdiction | Ireland |
| Judge | Ms. Justice Creedon |
| Judgment Date | 26 October 2018 |
| Neutral Citation | [2018] IEHC 801 |
| Docket Number | [RECORD NO. 2012 1486 P] |
| Court | High Court |
| Date | 26 October 2018 |
[2018] IEHC 801
THE HIGH COURT
Creedon J.
[RECORD NO. 2012 1486 P]
Damages – Breach of duty – Breach of contract– Plaintiff seeking damages for breach of duty, breach of contract, deceit and negligent misstatement – Whether the defendant complied with its duty of uberrima fides in its dealings with the plaintiff
Facts: Carroll and Associates, the broker of the plaintiff, Mr Harmon, made an application for a life assurance policy to Irish Progressive Life Assurance Company Ltd, the predecessor of the defendant, Irish Life Assurance plc. The broker stated that the plaintiff required cover to allow Mr Harmon make a draw down on a rental investment property. The proposal form of Mr Harmon forwarded by his broker to Irish Progressive sought three aspects of life cover namely: (i) life assurance; (ii) specific critical illness cover; and (iii) permanent total disability cover. The defendant said that in reply Irish Progressive Life only proposed the specified critical illness and life assurance cover. It said that permanent total disability cover was declined. The policy documentation sent to the plaintiff’s broker and copied to the plaintiff requested that Mr Harmon satisfy himself that the cover proposed met his requirements. The plaintiff signed an acceptance form acknowledging acceptance of the critical illness and life insurance cover proposed. The policy subsequently issued on the 7th September 1995. The defendant said that in June 1997, the plaintiff contacted Irish Progressive and requested permanent total disability cover be added to his policy along with increased critical illness cover. It said the plaintiff never replied to further correspondence and details sent by Irish Progressive on the 27th June 1997. Irish Progressive was subsequently taken over by Irish Life Assurance plc. The plaintiff applied to the High Court seeking inter alia, damages for breach of duty, breach of contract, deceit and negligent misstatement together with repayment of all premiums paid by operation of restitution, rescission or the setting aside of the contract.
Held by Creedon J that, having considered the legal arguments on both sides, and in light of the law and the facts as found, the court was persuaded by the arguments of the defendant. The court was satisfied that the defendant complied with its duty of uberrima fides in its dealings with the plaintiff. The court was similarly satisfied that the evidence amply supported consensus between the parties. Further having considered the law and facts the court was entirely satisfied that Carroll and Associates at all material times acted solely as Insurance Broker for the plaintiff. The court found that the European Communities (Unfair Terms in Consumer Contracts) Regulations 1995 had no application to the proceedings. With regard to the statute of limitations, the court found that the critical date was the date of the issue of the plenary summons which was the 14th February 2012; the policy in question was entered into and was dated the 7th September 1995, a period of almost sixteen years before the summons was issued. The court noted that the request for additional permanent total disability cover by the plaintiff in June 1997 was a period of over fourteen years before the plenary summons was issued.
Creedon J held that she would dismiss the plaintiff’s claim and refuse the reliefs sought.
Reliefs refused.
These proceedings commenced by way of plenary summons dated the 14th February 2012. The proceedings arise out of events concerning the alleged mis-selling of a unit linked Protection Plan (the policy) in September 1995 to the plaintiff by Irish Progressive Life Assurance Company Ltd. (Irish Progressive) the defendants” predecessor. The plaintiffs” broker Carroll and Associates made an application for a life assurance policy to Irish Progressive Life Assurance Company Ltd. (Irish Progressive). The brokers stated that the plaintiff required cover to allow Mr. Harmon make a draw down on a rental investment property. The policy is currently still in force with life cover of €145,515.
The policy bears policy number 75036245 and includes life assurance. The plaintiff says that he completed the proposal form for the policy with the assistance of Ms. Carroll (the broker) on the 5th September 1995 and sought cover for depression. The plaintiff submits he required both critical illness cover on the proposal form and also ticked the box for permanent disability as at the material time the plaintiff was suffering from depression and anxiety.
The proposal form of Mr. Harmon forwarded by his brokers to Irish Progressive sought three aspects of life cover namely,
(i) life assurance;
(ii) specific critical illness cover;
(iii) permanent total disability cover.
The defendants say that in reply Irish Progressive Life only proposed the specified critical illness and life assurance cover. They say that permanent total disability cover was declined. The policy documentation sent to the plaintiffs” broker and copied to the plaintiff requested that Mr. Harmon satisfy himself that the cover proposed met his requirements. The plaintiff signed an acceptance form on the 5th September 1995 acknowledging acceptance of the critical illness and life insurance cover proposed. The policy subsequently issued on the 7th September 1995.
The defendants say that in June 1997, the plaintiff contacted Irish Progressive and requested permanent total disability cover be added to his policy along with increased critical illness cover. They say the plaintiff never replied to further correspondence and details sent by Irish Progressive on the 27th June 1997. Irish Progressive was subsequently taken over by Irish Life Assurance plc.
The plaintiff seeks inter alia, damages for breach of duty, breach of contract, deceit, negligent misstatement together with repayment of all premiums paid by operation of restitution, rescission or the setting aside of the contract.
At trial, evidence was given by Mr. John Harmon the plaintiff on behalf of the plaintiff's case. On behalf of the defendant evidence was given by Mr. Colin Aylward Compliance and Agency Manager of Irish Life Assurance plc, Ms. Carol Symes, New Business Department, previously of Irish Progressive and now of Irish Life Assurance PLC. and Elizabeth Sweetman underwriter, again formerly of Irish Progressive, and now working for Irish Life Assurance PLC.
The plaintiffs say that the proceedings herein arise from the mis– selling of an insurance policy ‘critical illness’ (the policy) which was signed on the 21st September 1995 by Irish Progressive Life Assurance Company Ltd. via an insurance broker who assisted the plaintiff in completing the proposal, that is Carroll and Associates. The policy bears policy number 75036245 and includes life assurance. The plaintiff says that he completed the proposal form for the policy with the assistance of Ms. Carroll (the broker) on the 5th September 1995 and sought cover for depression. The plaintiff submits he required both critical illness cover on the proposal form and also ticked the box for permanent disability as at the material time the plaintiff was suffering from depression and anxiety.
Prior to finalisation of the insurance contract between the parties and having regard to the depression disclosed to the defendant by the plaintiff at the material time, the defendant referred the plaintiff to two psychiatrists prior to the initiation of the policy in June 1995 and the plaintiff says that the defendant applied a loading to the said policy which the plaintiff believed was due to his specific requirement to be covered for depression on the said policy.
The plaintiff was employed at the Garda Forensic Laboratory in the Phoenix Park, and due to his depression he was compelled to resign his job in March 2009.
Following his retirement from work in May 2009 the plaintiff claimed for depression on foot of his critical illness plan number 75036245 (the policy). The plaintiff submits that at all material times the plaintiff believed he was covered for such an illness and in fact an excess of 50% was applied to the plaintiff's life cover and critical illness premium by the defendant following a medical examination at the request of the defendant prior to the initiation of the said policy on the 7th September 1995. The plaintiff says that at all material times the plaintiff disclosed his depression and specifically sought cover for same. It is submitted by the plaintiff that he purchased the said policy via an insurance broker Ms. Carroll.
The position of the broker as agent is set out by statute. An agent is defined as acting for the insurer where he helps the proposer complete the proposal. In that regard the plaintiff sets out s.51 of the Insurance Act 1989 Part 5 as follows: -
‘51(1) An insurance agent shall be deemed to be acting as the agent of the undertaking to whom a proposal for insurance is being made when, for the purpose of the formation of the insurance contract, he completes in his own hand or helps the proposer of an insurance policy to complete a proposal for insurance. In such circumstances only, the insurer shall be responsible for any errors or omissions in the completed proposal.
(2) An undertaking shall be responsible for any act or omission of its tied insurance agent in respect of any matter pertaining to a contract of insurance offered or issued by that undertaking, as if the tied insurance agent was an employee of that undertaking.’
The plaintiff says that the broker has a duty of care to ensure the client has the best available cover to meet his requirements. The plaintiff says a brokers” duty is to: -
(i) Ascertain the...
To continue reading
Request your trial