MEDIA RELEASE
SOUTHERN RESPONSE CONCEALMENT CLASS ACTION
17 November 2020
Supreme Court rejects Southern Response’s appeal in class action
This afternoon the Supreme Court has issued its judgment in Southern Response Earthquake Services v Ross. Southern Response was appealing against the September 2019 decision of the Court of Appeal allowing Brendan and Colleen Ross to bring an “opt-out” class action against Southern Response on behalf of former policyholders.
The Supreme Court has rejected Southern Response’s appeal and confirmed the earlier decision of the Court of Appeal.
What the decision means
This decision is hugely significant. It means that when large corporations or government bodies mislead or mistreat large groups of people, claims can be brought on behalf of everyone who is affected, even if it is difficult to identify all those people. It confirms there is a legal pathway for ordinary people to access justice and hold powerful corporations to account. It is likely to have a huge impact on consumer protection and environmental claims, and other claims dealing with various types of widespread harms.
The Supreme Court decision also confirms that the New Zealand courts are willing and able to supervise class actions to ensure that the parties conduct the litigation fairly. In particular, any settlements need to be approved by the court to ensure they are fair to all the class members (the people represented in the class action).
For this particular case going forward, the Supreme Court has confirmed that Mr and Mrs Ross represent all policyholders who were affected by Southern Response’s misleading and deceptive conduct in settling earthquake claims prior to 1 October 2014.
With only a few exceptions, everyone who settled their claim with Southern Response prior to 1 October 2014 is part of the class action unless they decide to “opt out” of the claim. Thanks to Mr and Mrs Ross filing the class action in 2018, and fighting to ensure it can be brought on an opt-out basis, everyone in the class had their claims against Southern Response preserved and protected against the effect of statutory limitation periods.
After the class action was filed, Southern Response decided to use a similar claim brought by Mr and Mrs Dodds as a test case. With support from Mr and Mrs Ross and their legal team, the Dodds won their case in the High Court and again in the Court of Appeal, setting a powerful precedent for the class action.
Southern Response recently announced that it will not appeal the Dodds’ case to the Supreme Court. There is now no reason why Southern Response should not immediately begin negotiations with Mr and Mrs Ross to settle the class action under the supervision of the High Court, and provide compensation on a fair basis for everyone in the class action.
Background
The Southern Response Concealment Class Action is being brought on behalf of around 3,000 former policyholders of Southern Response (formerly known as AMI Insurance). Southern Response is owned by the Crown and is responsible for settling the insurance claims of AMI policyholders whose homes were damaged in the Canterbury earthquakes.
The class action alleges that Southern Response, a government entity, misled and deceived its policyholders when settling claims prior to 1 October 2014. Southern Response did this by sending the policyholder an abridged version of the cost estimate to repair/rebuild their home, which left out significant items of costs that in many cases added up to six figures. This approach resulted in policyholders being misled into settling their insurance claims for substantially less money than they were actually entitled to under the insurance policy.
In 2015 the Supreme Court held Southern Response’s approach was unlawful. However, Southern Response decided to change its approach only for settlements going forward. It refused to make any adjustments to settlements that occurred before 1 October 2014, in which policyholders were misled into accepting less than they were entitled to.
The class action is brought on behalf of all policyholders (with some minor exceptions) who settled their claims with Southern Response before 1 October 2014 and may have been misled by Southern Response. It seeks to recover compensation from Southern Response for everyone in the class action, based on the difference between the “abridged” cost estimate that was shown to each policyholder and Southern Response’s full estimate of the cost to repair/rebuild that policyholder’s home. In many cases, that difference is more than $100,000 per policyholder.
Inquiries to: Grant Cameron, 0274 323 066, or grant@gcalawyers.com
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