Patrick Bracher

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Aggregation of claims for related transactions

Where a policy aggregated claims for ‘similar acts or omissions in a series of related matters or transactions’ the enquiry was whether there was a real connection between the transactions in which they occurred. The use of the word ‘related’ implies there must be some interconnection between the matters or transactions so that they in … Continue reading

Insurance exclusion for ‘that particular part’ on which ‘performing operations’ (US)

The insured subcontracted a builder to build 53 prefabricated modular units for its residential blindness rehabilitation facility. The insurer denied an indemnity for water damage under a partly completed roof saying that the applicable exclusion barred coverage for ‘that particular part’ of property on which the policyholder or its subcontractors ‘are performing operations’. The units … Continue reading

Major shift in US attitude to insider trading

It is likely that insider trading in the US will in future include the situation where the information is disclosed with the expectation that the recipient would trade on it and the disclosure resembles trading by the insider, resulting in the gift of the profits to the recipient. In United States v Martoma the insider … Continue reading

US court upholds Lloyd’s flood exclusion

A US court of appeals upheld the exclusion in a policy issued by Lloyd’s Underwriters for losses ‘caused directly or indirectly by flood’ in relation to a claim where a river basin marina lost five of its docks in a storm which generated strong winds and 18cm of rain causing the river to rise about … Continue reading

Access to information: documents required

According to section 7(1) of the Promotion of Access to Information Act, the act does not apply to a record requested for the purpose of civil proceedings which have already commenced. Where a potential claimant requests information from the other party to pursue the claim, the rule of thumb is whether the records requested are reasonably … Continue reading

Reinstatement of cover only when claim paid

A New Zealand court has held that a policy undertaking by an insurer to reinstate the sum insured ‘after we have paid a claim under this policy’ does not give the insured a reinstatement right until a claim is actually paid. Where a loss happened, followed soon after by another loss before the first claim … Continue reading

Interpretation of contract: A lawyer’s understanding must not always be imposed on non-lawyers

In an important development of the law of interpretation of contracts, the Constitutional Court held in July 2017 that where ordinary laypeople use ordinary words in a contract, their understanding of the meaning of the words used must not be overridden by a lawyer’s understanding based on their knowledge of legal principles not familiar to … Continue reading

Licence restrictions as deprivation of property

A licence restriction in legislation is not a deprivation of property for the purposes of section 25 of the Bill of Rights unless the right that has been taken away from licensees constitutes a right or interest worthy of protection and is substantial enough that its removal constitutes deprivation. The SA Diamond Producers Organisation complained that … Continue reading

Acknowledging indebtedness in without prejudice discussions interrupts prescription

An acknowledgement of debt made by a debtor to a creditor in the course of without prejudice negotiations will interrupt the running of extinctive prescription unless this consequence is excluded from the discussions. In KLD Residential CC v Empire Earth Investments 17, the Supreme Court of Appeal was asked to strike a balance between the public … Continue reading

Breach of policy requirement not to settle or disclaim liability does not include plea in criminal proceedings

An insurer in Singapore alleged that the insured had breached the obligation not to ‘make any admission in connection with any claim’ by pleading guilty to five charges of failing to comply with fire regulations. The defence was rejected on the basis that a person’s unfettered freedom of choice as to how to plead in criminal … Continue reading

Election not to repudiate a contract may be changed for persistent default

Where one party repudiates a contract, the innocent party who elects to enforce performance can change that election and cancel the contract if the defaulting party persists in the breach by continuing to show an unequivocal intention not to remedy the breach or perform the contract. The plaintiff construction company in Primat Construction v Nelson … Continue reading

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
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