Patrick Bracher (ZA)

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South African court refuses to enforce a foreign judgment

By Patrick Bracher (ZA) on December 4, 2023 Posted in Insurance

The South African High Court in Pretoria refused to grant an application seeking to enforce an interdict granted by a Bermudan court against a South African company that was at no stage present in Bermuda and did not submit to its jurisdiction. The court applied the principles recognised by South African law insofar as its … Continue reading

Ride-hailing driver using rented vehicle insurance excluded as “regular use” vehicle (US)

By Patrick Bracher (ZA) on November 22, 2023 Posted in Insurance

In November 2023 a Michigan Court of Appeals denied coverage to a ride-hailing driver whose rented vehicle was rear-ended whilst carrying a passenger for reward because the Under-Insured Motorist (“UIM”) benefits under the insurer’s policy excluded benefits for bodily injury sustained by any person when using “any vehicle that is owned by or available for … Continue reading

The sanctions clause in (re)insurance contracts

By Patrick Bracher (ZA) on November 22, 2023 Posted in Insurance

The LMA3100 sanctions clause is now a familiar clause found in many policies. It reads: No (re)insurer shall be deemed to provide cover and no (re)insurer shall be liable to pay any claim or provide any benefit hereunder to the extent that the provision of such cover, payment of such claim or provision of such … Continue reading

Marijuana growers fire insurance claim rejected for lack of sprinklers (US)

By Patrick Bracher (ZA) on November 20, 2023 Posted in Insurance

In November 2023 a Michigan Court of Appeals rejected a fire claim by a marijuana growing operation, under a commercial property insurance policy against fire and other hazards, because the policy unambiguously required an automatic extinguishing system described in the policy as including sprinklers and discharge nozzles and related equipment. The policy included a Protective … Continue reading

Cyber risk modelling alone will not narrow the protection gap for peak cyber perils

By Patrick Bracher (ZA) on November 15, 2023 Posted in Insurance

Every insurer needs to read the research summary ‘Cyber Risk Accumulation: Fully tackling the insurability challenge’ issued by The Geneva Association in November 2023. Even though prudent insurance companies underwrite cyber risk with tightly-defined contract wordings, limited risk-absorbing capacity and requirements for risk management by the insured, this is not enough having regard to the … Continue reading

Insurance settlement agreements and unknown future losses (AUS)

By Patrick Bracher (ZA) on November 14, 2023 Posted in Insurance

The insurer and the insured had entered into releases “in settlement of a claim”. The court found that the agreement was not necessarily a settlement or compromise agreement as opposed to simply an agreement to pay an insurance claim. There is a distinction between settlement of a claim and settlement of a dispute. The settlement … Continue reading

Claims preparation costs are costs of presentation of the insurance claim (AUS)

By Patrick Bracher (ZA) on November 14, 2023 Posted in Insurance

In a dispute between insurer and insured relating to a fire claim, the insured sought claims preparation costs in the form of professional fees relating to fees charged by their lawyers for pursuing claims under the policy. The court held that the only sensible construction of the clause in the policy insuring claims preparation costs … Continue reading

Damages for sale of business can be based on EBITDA (US)

By Patrick Bracher (ZA) on November 14, 2023 Posted in Insurance

A US court held that damages claimed in connection with the breach of a purchase agreement for the sale of business can be appropriately measured based on multiple earnings before interest, taxes, depreciation and amortisation (EBITDA) where it is claimed that the breach impaired the earning powers of the business being acquired. The court, after … Continue reading

A contractual non-variation clause means just that

By Patrick Bracher (ZA) on November 1, 2023 Posted in Insurance

The Supreme Court of Appeal has reaffirmed that if a written contract provides that any variation of its terms must be in writing, any purported variation by the parties which is not in writing will be void. Trying to get around the non-variation clause by relying on estoppel was not successful. A motor dealer franchise … Continue reading

Court orders vaccination of infant (UK)

By Patrick Bracher (ZA) on October 24, 2023 Posted in General

A High Court in England refused an application by the mother of a nine-month old child to prevent the local authority from acting under the UK Children Act from administering routine childhood vaccinations including for diphtheria, tetanus, whooping cough, polio and hepatitis B. The opposition of the mother was based on religious grounds. The facts are … Continue reading

What is the essential character of a bicycle for customs duty

By Patrick Bracher (ZA) on October 19, 2023 Posted in Insurance

The courts get called upon to decide some extraordinary things (often in custom duties matters). The Supreme Court of Appeal on 09 October 2023, for the purposes of the import tariffs under the Customs and Excise Act of 1964, came to the surprising conclusion that a bicycle frame and fork bear the essential character of a … Continue reading

Joint venture non-suited for delay in bringing PAJA review

By Patrick Bracher (ZA) on October 16, 2023 Posted in General

This blog was co-authored by Felix Le Roux, Candidate Attorney On 3 October 2023, the Constitutional Court dismissed an appeal by a joint venture oil company in respect of a review application it had brought against SARS. The Court ruled that a further request for reasons by an applicant, after the administrator has provided the … Continue reading

Reinstatement value conditions equivalent upheld in US

By Patrick Bracher (ZA) on October 11, 2023 Posted in Insurance

In three similar cases in North Dakota US the court upheld a provision in the insurers property owners policy that excused the insurer from paying “on a replacement cost basis for any loss or damage until the lost or damaged property is actually repaired or replaced” and the repairs and replacements are made “as soon … Continue reading

Contract from an unlawful administrative decision may be declared invalid by collateral challenge without a review application

By Patrick Bracher (ZA) on October 9, 2023 Posted in General

This blog was co-authored by Felix Le Roux, Candidate Attorney. In a September 2023 judgment, the Supreme Court of Appeal (SCA) affirmed that a court is entitled to declare a contract unlawful and invalid on administrative law grounds, even in the absence of a review application by the party raising such grounds. In October … Continue reading

Construction insurance policy covering subcontractors included structural engineer (AUS)

By Patrick Bracher (ZA) on October 4, 2023 Posted in Insurance

A Third Party Liability Policy relating to a tower block residential building insured the principal contractor as well as “contractors and subcontractors”, and others all for their respective rights, interests and liabilities. The court held that the insurance covered the structural engineers according to the plain meaning of the word “subcontractor”. The plain meaning refers … Continue reading

Payment by a parent company on behalf of subsidiary does not relieve the insurer of the obligation to indemnify (AUS)

By Patrick Bracher (ZA) on October 4, 2023 Posted in Insurance

An engineer firm WSP Structures was liable to make payment of damages arising from its professional negligence. The debt was paid by the parent company WSP Australia. Despite this payment the insurers of WSP Structures were not relieved of the liability to indemnify the insured on the basis that WSP Structures debt had been discharged. … Continue reading

Professional indemnity cover does not exclude claim under liability policy (AUS)

By Patrick Bracher (ZA) on October 4, 2023 Posted in Insurance

The insurers of a structural engineering firm liable for losses resulting from negligence had agreed to indemnify its insured but no indemnity had yet been paid. The court held that the structural engineer’s liability insurers could not refuse to pay the claim on the basis that the insured had already been indemnified. Such a defence … Continue reading

A previous group insurance scheme became unlawful and the contracts unenforceable when Insurance Act 2017 commenced

By Patrick Bracher (ZA) on September 26, 2023 Posted in Insurance

In September 2023 the Supreme Court of Appeal held that, where 8 000 individual funeral policy members had formed part of a group scheme under the Long-term Insurance Act 1998 which was no longer a “group” scheme as defined in the Insurance Act 2017 from 01 July 2018, the insurance policies and the related intermediary … Continue reading

Accumulation concerns for cyber business

By Patrick Bracher (ZA) on September 20, 2023 Posted in Insurance

A Munich Re management board member has stated that the insurer is prepared to divest cyber business over accumulation concerns. The board member said that there is a need to recognise and understand accumulation potential in order to develop a sustainable cyber insurance market. Overexposure could lead to failures. Other insurers are said to be increasing … Continue reading

Medmal claim unsuccessful for failure to notify request for medical records (US)

By Patrick Bracher (ZA) on September 20, 2023 Posted in Healthcare, Insurance

A Maryland US court declined a doctor’s request for an indemnity from his medical malpractice insurers because the insured doctor failed to report a request for medical records from the patient’s lawyer as required by the policy during the policy period. The attorney’s request for medical records was sent on 20 April 2021. The insurance policy … Continue reading

Other insurance clauses lead to pro rata sharing no matter how elaborate (US)

By Patrick Bracher (ZA) on September 19, 2023 Posted in Insurance

It is a universal principle of insurance that where two policies covering the same loss purport to cancel each other out and only cover losses in excess of what other insurers cover, liability will be shared on a pro rata basis, usually equally. In a Georgia US decision regarding coverage for the same losses under … Continue reading

PAJA reviews are limited to the review grounds in PAJA (part 2)

By Patrick Bracher (ZA) on September 18, 2023 Posted in General

This blog was co-authored by Candidate Attorney, Felix Le Roux. In a previous blog, we pointed out that the ambit and limitations of PAJA review proceedings are frequently misconstrued, and that PAJA reviews are limited to the review grounds available and raised by the applicant in terms of PAJA. In a September 2023 judgment, the … Continue reading

Insurance claims rejection for failure of insured to submit to examination under oath (US)

By Patrick Bracher (ZA) on September 14, 2023 Posted in Insurance

A Massachusetts appeal court refused to uphold an insurer’s fire claim rejection that was based on an alleged failure of the insured to submit to a “reasonably required” examination under oath in the course of investigating the claim because, on the facts, the insured had not wilfully and without excuse refused to present its president … Continue reading

When can a South African court interdict a foreign respondent

By Patrick Bracher (ZA) on September 5, 2023 Posted in General

This blog was authored by Felix Le Roux. In an August 2023 judgment, the Johannesburg High Court struck from the roll an urgent application brought by a South African distributor to interdict a Chinese manufacturer from selling certain of its products to third parties who are known by it to be distributing those products on … Continue reading