Tracing insurance

07 Feb 2013

The majority of litigation is usually pursued within a matter of several years of the actionable event arising.  Limitation dates generally restrict Claimants to seeking legal redress within 3 years for personal injury or 6 years for other issues.  However section 11(4)(b) of the Limitation Act 1980 makes specific provision that the 3 year time limit for personal injury can be deemed to run from the “date of knowledge” when this is later than the actionable event.

In brief, this “date of knowledge” is generally considered to come into effect when a Claimant first realises that they may have suffered an injury which may have been attributable to negligence, nuisance or breach of duty.  As a result of this companies must also be wary of claims being pursued arising out of actionable events several decades previously where an injury has only just come to light.  This is most commonly seen in cases relating to industrial disease such as asbestos exposure or noise induced hearing loss.

Unfortunately identifying the appropriate public liability or employer’s liability insurer in relation to a period of exposure which took place several decades ago can be a very difficult task.  Often a company may no longer hold the relevant insurance details, in which case they potentially face having to address any claim themselves and, if the claim is successful, meet damages and costs in relation to the same.

Obviously records within the company should be perused, first of all, in order to determine whether any relevant information at all can be identified which may assist investigating who the appropriate insurers may be.  Even if only subsequent insurers can be identified then, in some circumstances, it may still be possible to work backwards with enquiries in an attempt to locate the relevant insurers. This is because often there will be a record with insurers which may confirm where the policy had previously been transferred from.

The Employers Liability Tracing Office (ELTO) provides a further avenue of investigation.  The Office was set up by the Association of British Insurers and the Insurers themselves, primarily to assist Claimants in locating the insurers of insolvent Defendant companies however it can equally be utilised by a solvent Defendant company who may no longer hold their insurance details for a historic period.  If a search is submitted Insurers undertake a search of their records to the best of their abilities to locate the insurance policy in question. The ELTO also hold a central record of Employers Liability Insurance policies entered into after April 2011 and any Employers Liability Insurance polices from before April 2011 where a claim has been made against them and the policy has been identified through the tracing service.  A search can be submitted online at the ELTO’s website.

If it is still not possible to locate the relevant insurers it may be possible to instruct insurance archaeologists who may be able to identify the insurers.  This involves a dedicated search of relevant archives and records to look to identify any appropriate insurance coverage during the relevant period.

If companies are presented with claims against them but are unable to locate the relevant insurers for that period it is important that they do seek legal advice at the earliest possible opportunity.  Time limits within a claim do not automatically stop whilst insurance investigations are carried out and it is therefore important to protect the company’s position, in the hope that an insurer will be identified, whilst this search is undertaken.