Donald Dinnie

Subscribe to all posts by Donald Dinnie

Covid-19 insurance claims and physical loss (US)

Another American court in G & A Family Enterprises, LLC d/b/a Smokin’ Pig BBQ & Others v American Family Insurance Company 1: 20-CV-03912-JPB has held that State-imposed Covid-19 restrictions do not qualify as a “direct physical loss” under the insurance policy held by the insureds. The court held that while the phrase “direct physical loss” … Continue reading

Powers of the Financial Services Tribunal

Industry role players who have found themselves subject to regulatory action taken by the Prudential Authority (PA) or the Financial Sector Conduct Authority (FSCA) may apply to the Financial Service Tribunal (FST) for reconsideration of that action.  Reasons for the decision can be requested within 30 days and the application must be made within 30 … Continue reading

The payment of medico-legal damages in services not money

The problem facing departments of health around the country is how to improve service delivery to the public and the quality of medical care provided to patients and so significantly reduce the number and quantum of medico-legal claims. Instead of funding healthcare programmes and facilities, a large portion of the annual budgets is allocated to … Continue reading

Insurance fraud and fraud clauses

The Supreme Court of Appeal in an April 2021 judgment dealt with the interpretation and  application of a fraud clause found in the policy.. The clause read: “If you, or anyone acting on your behalf submits a claim, or any information or documentation relating to a claim, that is in any way fraudulent, dishonest or … Continue reading

Excess reinsurances and the applicable jurisdiction regime

The United Kingdom High Court in the judgment of 13 April 2021 granted the excess reinsurer’s UK interim anti-suit injunction in respect of the insurer/defendants’ claims in South Africa under the excess reinsurance agreements.  Those claims in the English courts to the exclusion of the South African courts will represent the bulk of the defendants’ claims … Continue reading

Insurance policies and absolute and relative warranties

In South African insurance law a warranty is usually a condition precedent to inception or continuation of cover or payment of a claim.  The consequence of breach or non-fulfilment is that there is no obligation on the insurer to indemnify the insured. Warranties may be absolute or relative. An obligation requiring that a certain state … Continue reading

Business Interruption Insurance and the absence of Damage

A claim under a business interruption policy generally requires a valid claim under the material damage section of the policy.  And the damage must occur during the currency of the policy. In TKC London Limited v Allianz Insurance PLC [2020] EWHC 27 10 (Comm.), the insured operated a café in London.  Following the Covid-19 outbreak of … Continue reading

Policy interpretation – “interruption”

The United Kingdom Supreme Court, in the FCA Test case appeal, dealt with the meaning of “interruption” in a Business Interruption policy. The policy wording required there to be losses resulting from “an interruption to your activities…” The court held that the ordinary meaning of “interruption” is quite capable of encompassing interference or disruption which … Continue reading

Policy interpretation – prevention of access

The United Kingdom Supreme Court in the FCA Test Case appeal dealt with the meaning of “prevention of access” in respect of the prevention of access due to the actions or advice of the local authority because of an emergency which is likely to endanger life or property in a Business Interruption policy. The relevant … Continue reading

Policy interpretation – “inability to use”

The FCA Test Case appeal in the UK Supreme Court dealt with the meaning of “inability to use” business premises in the relevant non-damage extensions to the business interruption section of the policy considered by the court. The relevant non- damage Public Authority clauses did not cover all business interruption due to “restrictions imposed” by … Continue reading

Interpreting insurance contracts (part 7 – causation)

An insured loss must be caused legally and factually by the insured peril. Even where factual causation is established legal causation does not automatically follow. In Concord Insurance Co Limited v Oelofsen N.O. (1992) the court said that in the contractual context policy considerations do not enter the enquiry (unlike in criminal law or delict, … Continue reading

Interpreting insurance contracts (part 6 – objective interpretation)

The interpretation process is objective, not subjective. Where the meaning of any policy is clear, effect must be given to it. The court cannot substitute what it regards as reasonable, sensible or business-like for the words actually used. The court should not in those circumstances rewrite the contract made by the parties. Courts should not ‘make … Continue reading

COVID-19 is not insured ‘pollution’ (USA)

An American court has held that an insurer’s ‘premises pollution liability’ policy only covers environmental pollution and not the COVID-19 outbreak. Because COVID-19 is a type of virus it does not constitute traditional environmental pollution. The court said that the policy only covers pollutants commonly thought of as environmental pollution. The insured had argued that … Continue reading

No special circumstances when sentencing a doctor for culpable homicide

The Constitutional Court in Van der Walt v The State set aside a doctor’s criminal conviction for culpable homicide on the basis of irregularities committed by the regional magistrate, which infringed the doctor’s right to a fair trial. The conviction was not set aside on the merits. Therefore, whether the doctor’s guilt was proved beyond a reasonable … Continue reading

D & O insurance and reflective loss claims

At common law when a wrong is done to a company only the company can sue for the damage caused to it. That does not mean that the shareholders of the company may not consequentially suffer any loss (what is known as a reflective loss). Any negative impact the wrongdoing has on the company is … Continue reading

COVID-19 infectious disease extensions and the FCA test case

The English high court, in a test case between the Financial Conduct Authority and Arch Insurance (UK) Limited and a number of other insurers, engaged in a nuanced analysis of their different policy wordings relating to business interruption cover for COVID-19 related losses. The court largely sought to resolve causation issues by interpreting each policy. … Continue reading

International contracts, arbitration and choice of law

For international commercial contracts subject to an arbitration agreement to resolve disputes (including insurance or reinsurance agreements), two systems of national law may be engaged: The law governing the contract from which the dispute has arisen. The law governing the arbitration. That is usually the law of the seat of the arbitration – the place … Continue reading

Insurance policy interpretation contra proferentum – armed robbery, theft and hijacking

The Gauteng High Court considered what constitutes armed robbery, theft and hijacking as indemnifiable events under an insurance policy in Anabella Resources CC v Genric Insurance Company. The policy did not contain a definition of armed robbery and the definition of theft and hijacking required ‘actual lawful control’ by the insured or its employees of … Continue reading
LexBlog