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NSW Travel Insurance - Should I Sign the Form?

Discussion in 'Insurance Law Forum' started by PaulM, 6 January 2017.

  1. PaulM

    PaulM Active Member

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    I am a student studying long term overseas as a post doc researcher with my spouse as part of an Australian university. Before I departed, I checked in the travel insurance policy and with the university and broker and was confirmed we were both covered by the university travel policy.

    As we were away for a year, there were probably 6 times we visited the same medical clinic. Each time they called ahead and verified with the insurer and confirmed we were covered. No fees were paid by either of us at any time.

    However, one time my wife had a mole removed on her ankle as it had grown in size over a few months. There was a biopsy and it was OK but about 3 months later, the university sent me a bill via email that was addressed to the broker and they demanded I pay the money (it was $1200AUS) as my spouse was not covered by the policy.

    I didn't pay as I was insured and told them it was a mistake and check the previous claims (one was 6 moths earlier).They completely denied that she was covered despite the policy saying that she was and also all of the other claims were not mentioned.

    I rang the insurance broker and the first time before departure they confirmed she was covered but after the claim they would not comment.

    We are still living overseas and I still do University fieldwork but we pay our own insurance now, the university are aware of this as I had to provide proof of insurance for my studies (that's gold isn't it). So we pay for the University responsibility.

    Anyway I informed them that she was indeed covered and this was confirmed by the clinic on many occasions. I just let it go as I was not out of pocket. But the university handling of the situation seemed very dishonest and they never answered any of my questions but kept emailing me to pay.

    The other day I received an email from the university saying they will pay but the form I am requested to sign has some worrying sections:

    3. Terms of settlement

    The University agrees to pay to XXXXXMEDICAL an amount of XXXXXXXXX AND XXXXXXCENTS (including GST) (AUD $XXXXXXXX) (“the Payment”), payable within 28 days from the date on which XXXXME AND SXXXXXXXXPOUSE execute this Agreement.

    HIGHLIGHTS:

    XXXXXXXThey have received independent legal advice about the terms and effect of this Agreement or has been provided with the opportunity to receive such independent legal advice but has chosen not to;

    XXXXX and XXXXXX agree not to disclose to any person the the terms of this Agreement (including, without limitation, the amount paid by the University under clause 3) or the circumstances or negotiation of any of the terms of this Agreement.

    How do I get aid above if I cannot disclose?

    5.2 XXXXX and XXXXXX agree not to make any comment or statement to any person that denigrates or disparages the University, or which is calculated, or is reasonably likely to damage the reputation or otherwise cause damage to the University.

    But why should I not warn future students going overseas that their spouse may be left out to dry if they have an accident? The previous claims from my spouse were never questioned?

    Does anyone know how to help me? Like I said, I have not paid. Should I sign the form below and the university pays but not really sure why I have to sign? As I said we were insured. Maybe if I don't sign they may force me to pay?

    I stilJ don't understand why they are paying. I can't email them as they never return my emails.

    Strange days

    Any help is appreciated!


    Here's most of the form censored without the first chapter describing the treatment, etc.

    Acknowledgements, releases and warranties

    4.1. By this Agreement, XXXXXME and XXXXXSPOUSE irrevocably:

    4.1.1. accepts the terms of settlement set out in clause 3 and the Payment in full and final settlement of any Claim in connection with the Treatment;

    4.1.2. forever releases the University and MEDXXXXXXXX (including its past and present officers, employees and contractors) from all Claims which they now have or, but for this Agreement, might have had against the University in connection with the Treatment;

    4.1.3. acknowledges and covenants that the provisions of this Agreement are a complete bar to any future Claim against the University or MEDXXXXXXX (including its past or present officers, employees or contractors) in connection with, or arising from, the Treatment, and undertakes not to make or proceed with any such Claim; and

    4.1.4. indemnifies the University and MEDXXXXXXX against, as a separate, continuing and independent obligation of them, and on a full indemnity basis, all liability, costs or expenses (including legal costs) relating to or arising out of any:

    4.1.4.1. Claim made by them in connection with the Treatment;

    4.1.4.2. breach of their obligations under this Agreement;

    4.2. XXXXXME and SPOUSEXXXXXX warrant that:

    4.2.1. They have read and understand the terms of this Agreement;


    4.2.2. They have received independent legal advice about the terms and effect of this Agreement or has been provided with the opportunity to receive such independent legal advice but has chosen not to;

    4.2.3. the University has not made any promise, representation or inducement or been a party to any conduct material to them entering into this Agreement, other than as set out in this Agreement;

    4.2.4. They have not made or commenced any Claim against the University or MEDXXXXXXX, or to its past or present officers or employees, other than as set out in this Agreement;

    4.2.5. They are aware that the University is relying on the warranties and covenants in agreeing to enter into this Agreement;

    4.2.6. They will not at any time in the future make any Claim in respect of the Treatment.


    5. Confidentiality and non-disparagement


    5.1 XXXXXME and SPOUSEXXXXX agree not to disclose to any person the the terms of this Agreement (including, without limitation, the amount paid by the University under clause 3) or the circumstances or negotiation of any of the terms of this Agreement.

    5.2 XXXXXME and SPOUSEXXXXX agree not to make any comment or statement to any person that denigrates or disparages the University, or which is calculated, or is reasonably likely to damage the reputation or otherwise cause damage to the University.

    5.3 Clause 5.1 does not apply to a disclosure if it is:

    5.3.1 required by law;

    5.3.2 for the purpose of giving effect to or enforcing the terms of this Agreement; or

    5.3.3 for the purpose of obtaining legal, financial or other professional advice.

    5.4 In relation to any breach of his obligations under clause 4.1, XXXXXME and SPOUSEXXXXX:

    5.4.1 agree that the amount paid under clause 3 must be repaid in full to the University; and

    5.4.2 acknowledges that the University may rely upon this Agreement in respect of any Claim brought by it against XXXXXME and SPOUSEXXXXX

    6. Goods and services tax

    6.1 XXXXXME and SPOUSEXXXXX acknowledge and agree that any amount paid under clause 3 is inclusive of any tax pursuant to A New Tax System (Goods and Services Tax) Act 1999 (Cth) ("GST Act"), then that amount is taken to be inclusive of any goods and services or other tax levied in accordance with the GST Act.


    7. Governing law

    7.1 This Agreement is governed by the law applicable in New South Wales and the parties unconditionally submit to the Courts exercising jurisdiction in New South Wales and courts of appeal from them.


    8. Counterparts

    8.1 This Agreement may consist of a number of counterparts, and those counterparts taken together constitute one and the same instrument.


    Executed as an Agreement




    If anyone can help me whether to sign and send or not sign and not send, that would be great.

    Thanks! Much appreciated!
     
  2. Emge

    Emge Active Member

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    Hi Paul, apologies but I am unsure what your concerns are in relation to signing the agreement.

    I see one question which is how you can get independent legal advice without breaching clause 5.1 however I believe this is provided for in clause 5.3.3 - "Clause 5.1 does not apply to a disclosure if it is: for the purpose of obtaining legal, financial or other professional advice.".

    Is your primary concern that you would be unable to discuss the matter with other university students etc.? Or simply the agreement generally?

    If it is the latter, I see no significant risk to you signing the agreement, however I would be interested to know what the University defines as "the Treatment". Does the agreement define "the Treatment" in detail?

    Regards
     
  3. PaulM

    PaulM Active Member

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    Hi Emge, thanks for your reply...much appreciated.

    Just to clarify...my spouse was covered by the insurance previously as she was treated with no questions previously that year. So it seems funny that the university should need an agreement from me when she was insured anyway.

    So my primary concern is that does this mean by signing, that the previous claims that were covered and paid by the insurance company, will be billed to me instead of covered by the insurance claim.

    Also I feel it may be prudent as a duty of care for me to warn other students travelling overseas that their spouse may indeed not be insured ,as the university said that they agreed to pay 'this time".

    If it was a very large claim what would happen then? It just feels dodgy to me.

    When I departed Australia for this research the uni emphasized that my spouse was covered and so did the broker, But after this they changed their approach and said that she is not insured and failed to respond to my emails when I pointed it out on the policy.

    They repeatedly sent me the bill for the treatment and demanded I pay but the bill was addressed to the broker , not me anyway...

    When I questioned this they would not respond again...so I m pretty suspicious of anything they want me to sign...I know I m carrying on a bit but it was such a dodgy experience so I cant trust them at all.

    If I don't sign it , which is my current decision, this would be more comfortable for me I guess.

    Hope this makes more sense!
     
  4. PaulM

    PaulM Active Member

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    Sorry Emge this is the first part of the form witht eh treatment definition highlighted...cheers for that:

    Recitals

    On 5 XXXXX XXXXXMRS XXXXXattended an XXXXXXXX (the Clinic) to seek XXXXXXXX (the Treatment). On the same date prior to the Treatment, MXXXXXXXXreceived an email from MEDXXXXXXXinforming that her insurer (being BROKERXXXXX the University’s insurer) had confirmed coverage for her upcoming appointment at the Clinic.

    B. On 6 XXXXXXX a follow up appointment was arranged by MEDXXXXXXX, at the request of the medical practitioner. On that same day, MRSXXXXXX received an email from MEDXXXXXXX informing that her insurer had confirmed coverage for next appointment at the clinic on 12 XXXXX 2016.

    C. On XXXXXX 2016, MRSXXXXXX attended her appointment at the Clinic . The attendances referred to in recitals A to C are together referred to as the “Treatment”

    D. Medical expenses of AUD $XXXXXXXX were incurred via MEDXXXXXXX for the Treatment MRSXXXX received on XXXXXX.

    E. MEDXXXXXXX provided the invoice to the University’s insurer, BROKERXXXX for payment.BROKERXXXX advised that the claim could not be settled as MRSXXXXX was not an ‘insured person’ under the University’s Corporate Travel insurance policy.

    F. Without admission by the University or MEDXXXXXX as to any of the matters referred to in Recitals A to E or any liability in respect of any of them, the parties have agreed to resolve the all matters relating to the Treatment on the terms set out in this Agreement.

    Dictionary

    1.1. In this Agreement:

    1.1.1. “Claim” includes any claim, complaint, action, suit, cause of action, proceeding, arbitration, debt due, cost, claim, demand, verdict, judgment of any description made:

    1.1.1.1. to any person (including, without limitation, any government, government entity or statutory body); or

    1.1.1.2. in any forum (including, without limitation, any judicial or quasi judicial forum)
    either within or outside Australia, both at law or in equity or arising under the provisions of any statute, award or determination whether or not known at the date of this Agreement;

    1.1.2. “Treatment” includes any or all present and future Claims made by MRXXXX and MRSXXXX against the University or MEDXXXXX in connection with and of the matters relating to the Treatment:

    1.1.3. “The University” includes the University, all past and present officers and employees and past and present Council members of the University.

    1.2. In this Agreement, unless the contrary intention appears:

    1.2.1. a reference to this Agreement or another document includes a variation or replacement of them;

    1.2.2. a reference to a statute, ordinance, code, or other law includes a regulation or other instrument made under it, or any consolidation, amendment, re-enactment or replacement of any of them;

    1.2.3. the singular includes the plural and vice versa;

    1.2.4. the word person includes a firm, a partnership, body corporate, an unincorporated association or an authority;

    1.2.5. a reference to a person includes a reference to

    1.2.5. a reference to a person includes a reference to a person's executors, administrators, successors, substitutes and assigns;

    1.2.6. an agreement, undertaking, representation, warranty, indemnity or guarantee given by, or given in favour of, two or more persons binds, or is for the benefit of them, jointly and severally;

    1.2.7. a reference to a Recital, clause or an Appendix is a reference to a recital, clause or an appendix in this Agreement;

    1.2.8. a reference to any thing (including an amount) is a reference to the whole of or any part of it, and a reference to a group of persons is a reference to any one or more of them.

    1.3. Headings are inserted for convenience only and do not affect the interpretation of this Agreement.
     
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