Patrick Bracher

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Asbestos exclusion upheld in US

An exclusion for claims ‘arising out of asbestos’ was upheld by a US appeal court because it is unambiguous and therefore enforceable. The appeal court overturned a $36 million judgment against the insurer, which is only part of the policyholder’s liability for $120 million worth of asbestos-related claims. The court did not accept the argument that the … Continue reading

Claim rejected for misrepresentation (US)

A Pennsylvania court held that the insurer was not liable because of misrepresentation for a portion of a $227 million settlement by a building owner arising from a building collapse that took seven lives and injured 12 people. The event happened as a result of an uncontrolled collapse of a four-storey building which was being demolished … Continue reading

Some administrative and constitutional principles from the nuclear energy case

The Cape High Court decision in April 2017 setting aside the Minister of Energy’s decision determining the requirements for procurement of nuclear generation capacity and tabling of the related Russian intergovernmental agreement (IGA) in parliament usefully reminds us of a few important principles of constitutional and administrative law: Whilst the courts will not usually interfere … Continue reading

No cover for botched real estate deal (USA)

Where an insurance policy covered an estate agent for acts committed solely ‘in the performance of services as a real estate agent/broker of non-owned properties, for others for a fee’, the Utah Supreme Court denied coverage for an estate agent’s botched deal in which the agent persuaded a company to make an investment in a … Continue reading

Top blogs you may have missed – April 2017

In case you missed it, here’s our pick of ten of the most interesting articles from around the Norton Rose Fulbright global blog network. In insurance news, changes in the insurance and medical schemes acts, to accommodate the demarcation regulations, have been made. Here is some insight into the operation and interpretation of a retroactive … Continue reading

Could v would (UK)

In a judgment in the lower court in a reinsurance non-disclosure case the judge referred to what ‘could’ have happened if certain loss statistics had been produced whereas the relevant test was what ‘would’ have happened in that situation. The appeal court held that people, including judges, do not always speak with precision in the … Continue reading

Digitizing the insurance value chain

If you are interested in using hi-tech to get your insurance or other financial services business to the front of the curve, you should read this. The Norton Rose Fulbright global team, in association with R3, has published a paper on applying blockchain and distributed ledger technology in the insurance sector. R3 is a leading … Continue reading

Laws amendment to accommodate demarcation regulations

The pending changes to the Medical Schemes Act and the Long-term and Short-term Insurance Acts to accommodate the demarcation regulations were made on 1 April 2017 including the new definition of ‘business of a medical scheme’. The definition of ‘business of a medical scheme’ in the Medical Schemes Act 1998 makes it clear that if you … Continue reading

Passing of risk in sale (express term)

The plaintiffs sued the defendant for the purchase price of a buffalo which died during an operation to test it for diseases as part of the sale. It was found that a sale agreement had been concluded in which the defendant expressly agreed to assume the risk of death or injury to the buffalo arising … Continue reading

The once-and-for-all rule for delictual damages

A person who claims for damages sustained as a result of injuries negligently caused by someone else has a single, indivisible cause of action and must sue for all damages in one claim. This proposition was reasserted in the context of a prescription allegation regarding a Road Accident Fund Act claim. The RAF Act only … Continue reading

Operation of retroactive date

Where an insurance policy had a retroactive date so that there was no indemnity for any claim ‘arising from or in any way involving any act, error or omission committed’ prior to 5 June 2009, the court held that the indemnity was due because there was no direct or indirect causal connection between the events preceding … Continue reading

Top blogs you may have missed – March 2017

In case you missed it, here’s our pick of ten of the most interesting articles from around the Norton Rose Fulbright global blog network. Did you know that deregistered corporations come back to life retrospectively on reinstatement? Read what our Australian colleagues have to say about crowdfunding litigation and its potential impact on class actions. … Continue reading

What is a written demand for damages or relief?

A professional indemnity policy required the insured to give notice to the insurer of any ‘written demand for monetary damages or non-pecuniary relief’. A letter from solicitors reserving rights to pursue a claim and expressing the view that there was a strong claim against the insured was held not to be a written demand and … Continue reading

Deregistered corporation comes back to life retrospectively on reinstatement

A corporation which is deregistered under the Companies Act 2008 is automatically and retrospectively re-vested with its rights when it is reinstated (under section 82(4)). In ZNK Investments CC v Luckytso Transport and Construction CC, a sale in execution of a deregistered close corporation had taken place whilst it was deregistered. It was held that the … Continue reading

Setting aside arbitrator’s award for going beyond the dispute

Arbitration clauses must be construed liberally to give effect to their essential purpose which is to resolve legal disputes arising from commercial relationships before privately agreed tribunals, instead of through the courts. When business people choose to arbitrate their disputes they generally intend that all their disputes will be determined by the same tribunal unless … Continue reading

Failure of PI insured to report potential malpractice suit (US)

The question debated in a claim under a lawyers’ professional indemnity policy was whether the attorneys could have reasonably expected the underlying malpractice action and should have reported it to their insurers. The insurers argued that a claim should have been expected from an expressly unhappy client. The attorneys said the suit was not reasonably … Continue reading

Interdicting future publication of defamation

If an interdict is sought preventing the future publication of alleged defamatory matter, the facts upon which the allegation is based must be clear and it must be clear that the defendant has no defence. If the defendant sets up evidence of a defence such as truth and public interest or fair comment, the interdict … Continue reading
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