Photographer Covid and Wedding Insurance

[Webmango]

First post hope this is ok.

I run a small photography firm and was booked by a couple before lockdown to do their photography, which I agreed to. A month or so before the original booking the groom fractured his rib (apparently quite badly) and they had to postpone their wedding, which was fine.

They weren't sure how long his recovery would take exactly so they wanted to cancel the contract and revisit it again later. Under the terms of the contract their 50% deposit was non-refundable, which they agreed to and understood at point of cancellation. I offered alternate dates when we spoke, but they wanted to cancel so I agreed. An email was sent to explain and confirm they wished to go ahead and cancel which they did.

I've since received a letter from a company representing their wedding insurance company (who I didn't know they had taken insurance with), saying that the contract was frustrated due to covid and therefore I should return the money! They cancelled because of the grooms fractured rib, nothing to do with covid.

It's been a tough 18 months for me business wise, and I don't have that sort of money to pay back; but on top of that, it's cheeky to suggest that retrospectively the booking couldn't have gone ahead anyway because of COVID, therefore the customer should've got a refund!

They've given me 21 days to pay does anyone have any advice? I know subrogration is a thing, but this seems disingenuous at best.

 

[Frank the Insurance guy]

You've done well to document their formal instructions to cancel.

When did the injury and cancellation of the contract occur? If it was pre-covid, I cannot see how the "contract was frustrated due to covid". In this case, reply saying that the events leading to cancellation of the contract, at the customers request, was not affected by covid as it pre-dating it!

If the cancellation was after March 2020, it may be a bit more difficult as there may be legal precendents already in place. I would suggest you respond saying that the cancellation was due to an injury and not covid and the contract was cancelled in accordance with the terms and conditions agreed with the customer. See how they respond to that.

 

[Webmango]

Thanks Frank, this is really dirty dirty practice by the insurance guys, who would surely know the cancellation happened as a result of an injury! This is just sour grapes. I've incurred time in consultation costs with the couple as part of the pre-planning so to say I've had free money is also not true!

 

[WaveJumper]

Just to see If I was reading this correctly: Did they book then cancel / move the date initially due to the injury and now the new date has fallen into the COVID period. Now they are cancelling due to this (rather than the injury) I am betting they are probably trying to get a full refund from the wedding venue too?

 

[Financial-Modeller]

...Under the terms of the contract their 50% deposit was non-refundable...

and

...I've since received a letter from a company representing their wedding insurance company...

Check the doctrine of Privity of Contract.

 

[Frank the Insurance guy]

Check the doctrine of Privity of Contract.

I'm pretty sure that doesn't apply here. The insurance company are using their rights of subrogation, which means they can take action in the customers name to recover any monies paid under the insurance claim.

 

[Webmango]

Just to see If I was reading this correctly: Did they book then cancel / move the date initially due to the injury and now the new date has fallen into the COVID period. Now they are cancelling due to this (rather than the injury) I am betting they are probably trying to get a full refund from the wedding venue too?

They booked, groom got injured, cancelled due to the injury. Nothing to do with covid. They said on the phone they'd reduce numbers and do whatever they needed to in order to go ahead, but apparently it was anywhere between 3 and 9 months of recovery for the lad. Mustve done a real number on himself!

They never rebooked a new date, so no new terms were created and initial contract was closed, done and dusted at that point. Client knew terms, agreed terms, cancelled, and that should be that.

They cancelled due to the injury and that was that as far as I was concerned.

The insurance company are suggesting that irrespective of the cancellation reason, I wouldn't have been able to perform the contract anyway, and should therefore refund!

They're chancing their arm here I feel, as the cancellation was fully documented as being about the injury, and that was that. How they now retrospectively want to claim under covid is an absolute joke. Dirty industry

 

[Newchodge]

What date was the origina wedding and what date was the cancellation?

 

[Frank the Insurance guy]

Done a bit of digging for you: https://www.gov.uk/government/publi...c-consumer-contracts-cancellation-and-refunds

Really good info on "frustrated" contracts etc.

There is also a section in exceptions to full refunds, which includes where you have already provided some of the services (eg. Pre wedding consultantions etc).

I suggest you reply to them with the link, saying that as the cancellation was due to injury, they did no want to re-arrange but wanted to formally cancel in full knowledge of the refund policy this is not a "frustrated" contract.

It also says: "Ultimately only a court can decide how the law applies, and in many cases this will be the first time the issues have been considered in the context of a pandemic like this."

 

[Webmango]

What date was the origina wedding and what date was the cancellation?

Cancellation in April, wedding in May.

Done a bit of digging for you:

Really good info on "frustrated" contracts etc.

There is also a section in exceptions to full refunds, which includes where you have already provided some of the services (eg. Pre wedding consultantions etc).

I suggest you reply to them with the link, saying that as the cancellation was due to injury, they did no want to re-arrange but wanted to formally cancel in full knowledge of the refund policy this is not a "frustrated" contract.

It also says: "Ultimately only a court can decide how the law applies, and in many cases this will be the first time the issues have been considered in the context of a pandemic like this."

Thanks Frank I appreciate the assistance there - that is an interesting read for sure, even more so now it feels like this insurer is chancing their arm and just expecting an easy refund from me.

 

[Newchodge]

Cancellation in April, wedding in May.



Thanks Frank I appreciate the assistance there - that is an interesting read for sure, even more so now it feels like this insurer is chancing their arm and just expecting an easy refund from me.

Year?

 

[Webmango]

Year?

2020. About a month into the original lockdown

 

[Newchodge]

In that case I suggest you need to look very closely at your communicaitons with the couple. You need that to prove the reason for the cancellation, as a Covid-related cancellation at that point was quite likely.

 

[WaveJumper]

In that case I suggest you need to look very closely at your communicaitons with the couple. You need that to prove the reason for the cancellation, as a Covid-related cancellation at that point was quite likely.

Interesting as to where this goes as the couple obviously have claimed on the basis of COVID and not mentioned anything else to the insurance company. As you say OP needs to get all his communications out and go through them carefully.

 

[Morton_Wang]

Do you have a signed contract with the partner, or was it just a verbal agreement?
You should talk very well with the partner and verify what are the reasons for cancellation.
I recommend that you have a contract on paper and include that in case of any cancellation you will get some percentage of passage, so you will not be unprotected.

 

[ImranR]

Would you mind confirming which company the insurer and their agent are? There are some incompetent and questionable firms out there that don't have a clue and will chance anything. Feel free to PM me if you don't want to disclose here.

This is not subrogated action. Subrogation is recovering from a liable third party who caused the loss. Unless you are the one who caused covid or kicked the groom in the ribs, you are not liable.

 

[Interestedobserver]

If the OP just wrote a clear reply stating the reasons for not refunding and then stopped communicating full stop what would most likely happen next?

Problem with stuff like this is it's stressful, draining and time consuming

 

[N Willcocks]

Firstly subrogation is where an insurer takes over the rights concerning the basis of a claim from the insured - ie they can seek to recover monies paid to the insured as if they were the insured.

If the contract was terminated prior to Covid then the doctrine of frustration cannot apply with regards to Covid. At the time of cancellation your were willing and able to perform your part of the contract.

I cant believe that you were charging anything over £4,000 and any court hearing would be in the County Court Small claims division (Fast track) in which costs are limited to travel and nominal loss of earnings for attendance. ie pretty minor, each side has to pay its own legal costs. So if it comes to this represent yourself. The un-recoverable cost to the insurance company would probably make this claim not worth pursuing as they would have more expense than they could recover. Additionally small claims are seriously delayed 1 year plus due to covid irrespective of the fast track terminology. Should it actually go to court - unlikely ? make sure you demand a hearing in person not written representations as this will cost them substantially more.

Lastly it seems to me (I am in the same boat) that insurers are employing little more than ambulance chasing paralegals possibly on a no win no fee basis. Writing threatening letters hoping that you will cave in. Be strong and tell them in writing that you consider the claim to be vexatious, without foundation and that you consider their stance to be bullying and intimidatingly. Further more you do not believe that they have satisfied Pre-Action Protocol. They should then hopefully bugger off - not that they will tell you, they will just go quiet.

Wedding Venue owner and advisor.

 

[Socio South West]

@Webmango Are you a member of any of the various photographic societies/associations?

Certainly the MPA and BIPP and probably 'The Societies' will have someone there who will better advise you on this than on a general business forum, and may be able to provide you with other instances of this company doing likewise.

 

[Ryan Paul]

Interesting as to where this goes as the couple obviously have claimed on the basis of COVID and not mentioned anything else to the insurance company. As you say OP needs to get all his communications out and go through them carefully.

Perhaps Covid-19 was why they cancelled but the couple used the injury as an excuse to delay so that they could claim on insurance.

I've used events insurance in the past and if you can provide medical documentation that substansiates why you're unable to attend then they will payout.
I mean, a rib injury shouldn't take more than 6wks to recover from.

I reckon the insurer is using dirty tactics to recoup what they paid out and would therefore ignore any further demands after you've made your stance clear.