A High Court judge has issued a "heartfelt plea" to an insurance company to reconsider the plight of a man who was refused payment under his serious illness policy because he underwent surgery on one rather than two arteries, as required by the policy.
Mr Justice Gerard Hogan said the law obliged him to strike out an action by Florence Crowley against Zurich Life Assurance plc, but he had "considerable sympathy" for Mr Crowley.
The man was “doubly disadvantaged”, having clearly suffered a serious illness which greatly diminished his earning capacity and then been refused payment under his policy, he said.
It gave him "no pleasure at all" to find Mr Crowley's case against Zurich must be struck out due to his failure to appeal to the High Court against a decision of the Financial Services Ombudsman (FSO) dismissing his complaint, the judge said.
‘Sympathetic reconsideration’
“I would request Zurich to give as sympathetic a reconsideration of the underlying merits of this claim as it considered feasible.”
Barney Quirke, for Zurich, sought time to consider the judgment and Mr Justice Hogan adjourned the matter to April 22nd.
The case arose after Mr Crowley underwent surgery in 2010 for a serious heart condition. The surgery involved an angioplasty stenting of the lower anterior descending (LAD) artery.
Mr Crowley claimed under a policy for serious illness cover taken out with Zurich in 2002.
Zurich said that, in order to be paid for coronary catheter treatment, his surgery had to involve a procedure to correct at least 50 per cent diameter narrowing of two coronary arteries.
Not entitled
Because he underwent surgery to correct narrowing of one artery only, he was not entitled to serious illness benefit, it said.
After Mr Crowley unsuccessfully appealed under Zurich's internal appeal procedures, he complained to the FSO, which ruled the policy definition required two or more arteries to be stented.
There was no objective evidence to show Mr Crowley’s treating doctors did not insert a stent into one of his other arteries (as opposed to a branch of the LAD) because there was a preferable course of treatment available or such course of action may have placed his life in danger, the FSO added.
Mr Crowley did not appeal the FSO decision but, representing himself, instead initiated High Court proceedings against Zurich and the FSO on several grounds.
His case against the FSO was previously struck out because no action against the Ombudsman may be brought unless bad faith is shown - and there was no evidence of bad faith in this case.
Zurich also sought to have the case against it also struck out on grounds Mr Crowley’s claims against it had been decided by the FSO, whose decision was not appealed.
Mr Justice Hogan said Mr Crowley’s High Court case against Zurich was essentially the same as that decided by the FSO.
Unless decisions of the Ombudsman are appealed to the High Court, the relevant law – the Central Bank Act 1942 as inserted by the Central Bank and Financial Services Authority Act 2004 – means they are binding in character and final, he noted.
Not satisfactory
Mr Crowley had said he assumed he could not appeal the FSO ruling after an internal FSO review of that decision went against him, but that explanation was not satisfactory, the judge said.
He dismissed further arguments that the medical conclusions by Zurich in Mr Crowley’s case were flawed.
Mr Crowley had argued a branch of the LAD which was also stented should be regarded as a coronary artery in its own right, bringing him within the requirements of two arteries.
The High Court could not go beyond the Ombudsman’s findings and generally reopen Mr Crowley’s contractual claim, the judge added.
