Steeped in Blood (10 page)

Polygraphs are not relied on in the judicial system, and are not legal tender. They are not even accepted by the South African Insurance Assurance (SAIA). I would advise anyone who is asked by an insurance company to take a polygraph test to refuse point-blank.

For the insurance company to use a polygraph test in the instance of this young man’s case was completely underhanded, and would have bamboozled an innocent client if he had not sought help.

I have enjoyed challenging the large insurance companies, and I have enjoyed being truly independent. The thought of constantly
being subjected to the whims of the various insurance companies’ claims managers is utterly abhorrent to me.

An expert’s evidence is only as strong as the scrutiny it can withstand. Invariably, there will be ‘experts’ who do not have the expertise they profess to have. However, scientific proof is always the deciding factor. There is no grey area: everything boils down to the hard facts.

‘Fair is foul, and foul is fair:
Hover through the fog and filthy air.’

– WILLIAM SHAKESPEARE,

Macbeth
, Act 1, scene 1, lines 11–12

Having delved into an exciting career as an independent forensic scientist, people started approaching me to assist them in doing battle against the insurance companies. I became involved in a number of these cases, and started a company called Queensberry, to act specifically on behalf of insurance claimants. I chose this name because The Queensberry rules symbolise fair play, and were endorsed by the ninth Marquess of Queensberry for use in professional and amateur boxing matches. The rules are pertinent to both the world of boxing and the world of insurance claims.

One of my first encounters acting on behalf of a claimant was with one of the larger direct insurance companies. It is one of those insurance companies that encourages potential clients to insure directly – that is to say, without the advice and assistance of a broker.

When Mr Joffe, a humble shopkeeper from Alberton, submitted an insurance claim, he found the ball thrown right back in his court along with some serious threats.

Mr Joffe’s children, who lived in the United States, were planning to visit with the grandchildren. The Joffes were delighted, and purchased a video camera to record their time together. The visit came and went, and their children and grandchildren returned to the United States, leaving the video camera, some tapes and many happy memories. Then fate stepped in, and the Joffes were burgled. They were cleaned out, and along with the microwave oven, TV set and other electronic goods, the video camera was stolen.

No problem, thought Mr Joffe, as he called his insurers. Within days, an internal investigator and loss adjuster came to see Mr Joffe and proceeded to interrogate him. Mr Joffe was asked all sorts of trivia relating to the equipment, leaving him feeling bewildered. Bewilderment turned to anger when he later received a letter signed by the assessor, stating that the insurers had rejected the claim because Joffe had ‘failed to supply [the insurer] with true and complete information’ and that he had ‘failed to comply with our reasonable instructions and requests’. In addition, he had ‘failed to supply proof of ownership and value of the items claimed for’. The letter further stated that the insurers had ‘handed the matter over to the SAPS Fraud Unit for further investigation’.

Mr Joffe was horrified, dismayed and angry. Someone suggested to him that he come to see me, and we met shortly afterwards.

When he had told me the whole sorry tale, I phoned the loss adjuster, who immediately passed me on to the in-house legal advisor for the insurer. I asked if we could meet in person before the company embarked on its threat of criminal charges. The legal advisor agreed, and Mr Joffe arrived at my offices in Johannesburg at the designated time, and we waited.

After about forty-five minutes, I called the insurer’s legal advisor, who informed me, abruptly, that the matter had been referred back to the loss adjuster. He was kind enough to transfer my call, and the loss adjuster told me in no uncertain terms that he was not
prepared to discuss anything with either me or Mr Joffe, and that he was going to lay criminal charges immediately.

I smiled to myself as I said to him, Is it true that you have not laid criminal charges yet?’

‘Yes,’ he retorted, ‘but I am going to do so now.’

I replied, ‘But I have a letter from a few months ago where you said that you were going to do so then. It appears that you have not done so. I suggest the following to you: run down as fast as your little legs will take you and lay the charges. I will phone you for a police reference number. Following this, I can assure you that the following will occur. Firstly, I will charge you in your personal capacity with extortion. Secondly, I will assist Mr Joffe in bringing a civil claim against you in your personal capacity for defamation. Thirdly, I will involve your entire company in this activity. Go quickly,’ I added, ‘I need the money.’

Well, this caused an uproar at this insurance company, to put it mildly. Joffe phoned me to tell me that the insurer’s legal advisor had called him, and that he had referred him to me. The legal advisor then phoned me and I questioned him as to how he, as an attorney, could contact a client directly when he knew that the client was being represented. He backed down immediately, and another meeting was arranged. This time, all parties attended. Bizarrely, they insisted that the meeting be held at a noisy restaurant in a nearby shopping centre. They obviously felt uncomfortable in my office. The childishness of the ‘captains of industry’ is truly astounding.

The end result was that Joffe received a cheque in the post, as well as a letter of apology from his insurer.

One may have thought that this insurance company would have learnt their lesson from all of this. Not so.

Michael Collison was asleep with his girlfriend one night when they were awakened by the sound of breaking glass. They cowered in their locked bedroom and, eventually, when the noises subsided,
they ventured out. They were immediately met with a blast of hot air and smoke coming from the stairwell. They ran back into their bedroom and headed out to the balcony, but it was too high for them to jump. Back inside, they skirted the stairwell and managed to find a loft ladder, which they used to reach the safety of the ground. It was a highly traumatic experience.

Collison approached his insurers and submitted a claim. The insurers enlisted the services of the Council for Scientific and Industrial Research (CSIR) to investigate the fire, who submitted a report shortly afterwards. Collison received a call from the insurers, and was asked if he would come in to see them. Sitting in their plush offices in Pretoria, Collison was shocked by what he was told.

‘Look, we know what went on in this fire,’ the claims adjuster said. ‘You must realise how seriously the courts view arson. You are not going to be the only one who suffers here: I prosecuted a man with young children and he was sent to jail. You do not want to go the full fifteen rounds with us. I will do a deal with you, withdraw your claim and I will not prosecute you.’

Collison was outraged and came to see me. I approached the insurer on his behalf and met with the legal advisor and the claims manager. I warned them about the flimsiness of their case, but my cautioning fell on deaf ears. I was sent away, and departed with their statement ringing in my ears: ‘We are quite confident about our case and we will be happy to see you in court.’ My reply to them had been, ‘So be it, but when you hit problems in the court case, don’t cry. You are big boys.’

The insurers seemed to try their level best to make this case as difficult as possible. The first hurdle we had to overcome was their denial that Collison was insured with them – they claimed that they had not been receiving premiums! This was purely a tactical move, and in any other situation it would clearly be called dishonest. They were quite capable of checking their records to see that
Collison had been paying premiums. However, to the dismay of the insurance company, Collison was made of sterner stuff than they had anticipated, and he emerged from the gruelling cross-examination on the first day having proved that he was, in fact, a client of theirs.

That afternoon, at close of play, the insurers again took us by surprise. They had sent out their expert to gather more evidence, and he arrived back at court and presented us with a new bundle of photographs that we would have to consider before the case resumed the next morning. This was not proper in terms of the rules of evidence, which expressly forbids this type of ambush tactic.

Collison was running his case on a shoestring budget. Although he was well within his rights to insist on a postponement at the insurer’s cost, both he and they knew that we did not have the funds to pay for an entire rerun of the proceedings at some later date. We elected to continue.

I looked at the photographs in court when they were given to us that afternoon, and then, in a voice loud enough to be heard by the insurance company’s representatives and their lawyers, I said to Collison’s legal counsel, ‘John, please thank them. They have unwittingly provided me with more evidence that refutes their case and they have saved me a trip back to the scene.’ There was wide-eyed silence from the opposing team.

The next morning, the advocate acting for the insurers came sidling up to our lawyers and asked for a second experts meeting. I readily agreed, insisting that no lawyers be present.

Their expert had made a complete hash of his investigation. He asked me if we could work this out, and in the spirit of proper expert cooperation – noticeably lacking from the insurers up to that point – their expert and I drew up a new expert minute that put their case in an entirely different light. Their expert backed down completely from the view that was contained in the court
papers. We went into court and recorded that the insurers had conceded the merits of the case.

After emerging from the courtroom, the insurer’s legal advisor was standing outside, and there was some tension between us. In later years, we mellowed and we can be quite civil to each other. In fact, on the rare occcasion he even recommends my services to various people, as long as they are not clients of his insurance company!

This case is just another shameful example of the behaviour of industry leaders. One would have expected them to show some remorse. Not so. This insurance company proceeded to offer Collison R750 000 in full and final settlement, despite the fact that they had valued the property at R2.2 million. They were banking on the fact that Collison would be unable to fight a protracted and unfair court battle to get what was rightfully his. No amount of correspondence and discussion by Collison’s attorney would move them.

Finally, in desperation, Collison turned to me again, and I called the overconfident claims manager once more. The conversation went roughly along the following lines: ‘I have,’ I said, ‘a tape recording of a conversation between a member of your staff and Mr Collison. I am not a lawyer, so I called my friend, the Deputy Attorney-General, and he tells me that this attempt to get Collison to withdraw amounts to extortion. I am giving you an opportunity to persuade me why I should not discuss this live on radio.’

There was a prolonged silence, followed by the plaintive response, ‘Well, it would be very bad for the company.’

A meeting was set up between us for early the following week, and a much more equitable settlement was reached.

To date, I have dealt with about 1 800 cases, and the experience has done little to diminish my cynicism regarding the so-called ‘captains of industry’.

The insurance industry is organised on a number of levels. There is the central managerial section, under which falls the underwriting department, whose function is to evaluate the risk to be insured and to assess a fair value for the premium. The underwriters are supposed to take into account all the risk factors and problems at the onset of the insurance contract.

Then there is the claims department, which deals with and processes all the claims that are lodged with the company. Claims and underwriting should function as a harmonious whole. When a claim is lodged, the company appoints a loss adjuster to investigate the claim. These loss adjusters claim to be independent and to act fairly to adjudicate the claim, but this does not happen in practice. The loss-adjusting fraternity – like many forensic investigators – is critically dependent on the goodwill of the insurance companies, which leads to the loss adjusters grovelling at the feet of the insurers to retain their goodwill. This often results in the insured being short-changed. I have been embarrassed to see the abject servility exhibited by some of these loss adjusters when dealing with their principals, the insurance companies. There are some loss adjusters, of course, who do not exhibit such servile behaviour, but they are not in the majority.

I realised this fairly early on in my dealings with the insurance giants. When I started my consulting career, there were approximately forty different short-term insurance companies doing business in South Africa. This number has dwindled over the years; there are now only about five large players. The effect on customer choice, support and, above all, equity, has been devastating. Although difficult to prove, I believe that there is collusion between the large role players and, at the end of the day, the client is the one who suffers.