Patrick Bracher

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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

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
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