Donald Dinnie

Directors and Officers Insurance and Material Non-Disclosure & Misrepresentation (Australia)

By Donald Dinnie on August 5, 2022 Posted in Insurance

In this judgment the court considered the insured’s duty of disclosure and the insurers’ ability to avoid the policy under the relevant Australian legislation. The question turned on what was called the Iraq File Note written in November 2010.The insurers contended that the contents should have been disclosed before renewal of the policy in 2011. … Continue reading

Composite insurance policies

By Donald Dinnie on August 4, 2022 Posted in Insurance

A composite policy is a policy which comprises in one document the interests of a number of persons whose connection with the subject matter of the insurance makes it natural and reasonable that the whole matter should be dealt with in one policy. It is commonplace for reasons of commercial convenience to insure the interests … Continue reading

Subrogation, co-insurance and CAR insurance policies

By Donald Dinnie on August 2, 2022 Posted in Insurance

This United Kingdom judgment dealt with the issue of co-insurance under project construction all-risk policies, and the extent of cover when facing a subrogated claim from the project insurers. It depends on the terms of the project contract. The Rugby Football Union (RFU), as the employer insured under the CAR policy, engaged CSP to design … Continue reading

Insurance, causation and a SASRIA peril

By Donald Dinnie on July 27, 2022 Posted in Insurance

In this case the insured sued the primary insurer and SASRIA in the alternative in seeking an indemnity for its underground mining earthmoving equipment irreparably damaged when the mine in which the equipment was operating was flooded. The primary policy excluded the SASRIA perils. The SASRIA policy covered a labour unrest peril. The question was … Continue reading

Prescription of insurance claim

By Donald Dinnie on July 26, 2022 Posted in Insurance

In this judgment, the policyholder unsuccessfully argued that the Prescription Act did not apply because the insurer was confined to the time-bar clause in the policy which provided for a period of prescription from the date of the rejection of the claim and because no rejection was ever issued, the clause could not be invoked. … Continue reading

Interpreting insurance policies and the quality of the drafting (Australian judgment)

By Donald Dinnie on July 13, 2022 Posted in Insurance

The quality of the drafting of a policy may be taken into account when construing its terms: “The policy should be construed as a whole … It should not be approached by isolating particular fragments or disregarding its overall character … This also requires consideration of the style, layout, language and structure of the instrument. … Continue reading

Insurance and ESG

By Donald Dinnie on July 11, 2022 Posted in Insurance

Environmental, social and governance issues are playing and will play an increasingly important role in the South African insurance sector which should be proactive in contributing to, influencing and being part of ongoing discussions on integration of ESG principles into risk management, underwriting, capital adequacy processes, investment decision making, underwriting and underwriting disclosures, capital adequacy … Continue reading

The once and for all rule: a practical lesson

By Donald Dinnie on July 8, 2022 Posted in General

The once and for all rule provides that in claims for compensation or satisfaction arising out of a delict, breach of contract or other cause, the plaintiff must claim damages once for all damage allegedly sustained or expected insofar as it is based on a single cause of action. The law requires a party with … Continue reading

D & O Insurance and ESG

By Donald Dinnie on July 6, 2022 Posted in Insurance

The existence or absence of sound corporate governance has always been a factor when underwriting a D & O risk. Sound governance includes sound ESG practices. It is becoming standard for D & O underwriters to undertake an ESG analysis as part of the underwriting process so that underwriters can achieve as much comfort as … Continue reading

Double insurance (Australia)

By Donald Dinnie on June 30, 2022 Posted in Insurance

In this April 2022 judgement, the court reviewed and considered the doctrine of double insurance in the context of a motor vehicle accident claim where the third party insurer settled the claim and then sought a contribution from the insurer of the employer of the driver. And the effect in that context on double insurance of … Continue reading

Trade credit insurance and Sharia-compliant finance (Australia)

By Donald Dinnie on June 29, 2022 Posted in Uncategorized

This judgement dealt with a trade credit insurance policy issued by the insurer. Trade credit insurance is a business insurance product which indemnifies a seller against losses from non-payment of a commercial trade debt. The insurer usually pays an agreed percentage of an invoice or a receivable that remains unpaid because of protracted default, insolvency … Continue reading

More about the duty to mitigate loss (Australia)

By Donald Dinnie on June 28, 2022 Posted in General

“The purpose of the principle that a party injured by the wrong of another must mitigate the Damage is to ensure that damages do not over-compensate for the wrong, not to empower the wrongdoer to frustrate a claim for reasonable compensation. Therefore, the onus of establishing that the injured party has not mitigated their loss … Continue reading

Broker’s liability to clients (Australia)

By Donald Dinnie and Keaoleboga Molefe on June 28, 2022 Posted in Insurance

This is an Australian case which concerns legal duties that a broker owes to its client (the insured) and the burden of proof that lies with the insured in showing whether brokers breached their legal duty. The broker provided the client with insurance brokerage services for over 30 years. The broker had obtained all-inclusive building … Continue reading

Pending Covid-19 cases (UK)

By Donald Dinnie on June 27, 2022 Posted in General

There are still a number of pending Covid-19 policy interpretation cases being dealt with by the courts in England in the coming months. Stonegate v MS Amlin, Various eateries v Allianz and Gregg’s v Zurich all grapple with the issue of aggregation. Stonegate and the other claimants for example argue that their business interruption insuring … Continue reading

About the duty to mitigate loss (UK)

By Donald Dinnie on June 27, 2022 Posted in General

“Where the sufferer from a breach of contract finds himself, in consequence of that breach placed in a position of embarrassment, the measures which he may be driven to adopt in order to extract himself ought not to be weighed in nice scales at the instance of the party whose breach of contract has occasioned … Continue reading

D & O Insurance, Derivative claims and ESG (UK)

By Donald Dinnie on June 23, 2022 Posted in Insurance

In this High Court of Justice judgment, the court declined to permit two members of the pension scheme to bring a derivative claim against the Universities Superannuation Scheme and the directors of its corporate trustee. Derivative claims are made when those with interest in the company, usually shareholders, bring a lawsuit against directors for alleged … Continue reading

Contractual liability exclusions in insurance policies (Canada)

By Donald Dinnie on June 21, 2022 Posted in Insurance

In this Canadian judgment, the court dealt with a professional errors and omissions policy which excluded contractual liability claims unless the insured would have had that liability in the absence of the contract. The relevant exclusion read: “This Policy does not apply to any Claim … arising from the Insured’s: assumption of liability in a … Continue reading

Breach of claims co-operation obligation and rejection and cancellation of a policy

By Donald Dinnie on June 20, 2022 Posted in Insurance

This recent rather cryptic judgment confirms that in appropriate circumstances, an insurer may both reject the relevant insurance claim and cancel the policy by reason of the breach of the insured’s claim co-operation obligations under the policy. The judgment is thin on particularity and does not identify the particular claims co-operation clause, its wording nor … Continue reading

Storm insurance and landslip

By Donald Dinnie on June 2, 2022 Posted in Insurance

In this 1976 judgment the policy covered damage caused by a storm. The policy excluded damage caused by subsidence or landslip. The retaining wall on a mountain slope collapsed after a heavy rainfall damaging property in the lower premises. One wall was poorly designed and had an inadequate footing and insufficient weepholes to drain off water … Continue reading

A new intervening cause absolves electrical contractor from liability for injury

By Donald Dinnie and Rethabile Shabalala on May 30, 2022 Posted in Insurance

The plaintiff and her minor child resided in a sectional title complex. On 10 September 2015, while helping his mother wash her car, the plaintiff’s son was electrocuted whilst trying to open a tap outside a unit. The occupier of that unit had requested improvements to be done to her kitchen wherein several contractors were … Continue reading

Insurable Interest (England)

By Donald Dinnie on May 20, 2022 Posted in Insurance

Insurable Interest (England) In this High Court of Justice decision the insured claimed under a marine cargo open policy. The insured had purchased cargos of grain under various contracts and paid for those against presentation by the sellers of warehouse receipts issued by the warehouses. The warehouses were however acting fraudulently in issuing multiple warehouse receipts … Continue reading

Insurance, liquidation and business rescue

By Donald Dinnie on May 19, 2022 Posted in Insurance

Insurance policies, particularly commercial policies providing business interruption, may contain provisions dealing with the consequences which flow for the parties, and the question of continuing cover and any indemnity, in the event of the liquidation of an insured. The relevant clauses are often outdated and should be reviewed having regard to the relevant provisions of … Continue reading

Warranty and Indemnity insurance

By Donald Dinnie on May 18, 2022 Posted in Insurance

Insurers and intermediaries involved in providing warranty and indemnity insurance will be interested in this recent judgment dealing with contractual warranties and an indemnity of EBS International (Pty) Limited and another v Shaun Edward Wright and which is relevant to any subrogated recovery. The seller had represented that its tax affairs were in order. Those … Continue reading

Entitlement to indemnity and “Interests of Other Parties” clause (Australia)

By Donald Dinnie on May 17, 2022 Posted in Insurance

In this judgment the appeal court had to consider whether the claimant who owned goods damaged by fire at the insured’s warehouse premises was entitled to an indemnity under the relevant policy of insurance. The lower court held that on a proper construction of the “interests of other parties” clause in the policy as interpreted … Continue reading