Patrick Bracher (ZA)

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UK Conduct Authority backlog causing serious frustration

By Patrick Bracher (ZA) on October 4, 2022 Posted in Insurance

South African readers will be interested to hear that, according to a recent article in Insurance Day,severe delays at the UK Financial Conduct Authority in approving senior hires are causing strife and harming competitiveness. System errors are allegedly also leading to threats of fines that are unwarranted and later withdrawn. Part of the problem is … Continue reading

Cover ‘afforded’ by umbrella policy means cover ‘provided’ (US)

By Patrick Bracher (ZA) on October 3, 2022 Posted in Insurance

The insured sought cover under a catastrophe umbrella policy when a claim under the underlying policies had been dismissed for late notice. The umbrella policy covered “any claim alleging bodily injury, personal injury or property damage, insurance for which is not afforded by the underlying policies”. The court held that the word “afforded” in the … Continue reading

Mould damage from burst pipe not caused ‘solely’ by mould (US)

By Patrick Bracher (ZA) on September 30, 2022 Posted in Insurance

A burst boiler pipe at a hotel resulted in mould damage to the property. An exclusion stated “damage caused solely by mould is not covered under this policy”. The court found that the language “caused solely by” indicates a distinction between mould as a loss and mould as a cause of the loss. The triggering … Continue reading

Liability excluded for motor vehicle used as tool of trade (Aus)

By Patrick Bracher (ZA) on September 26, 2022 Posted in Insurance

An Australian Supreme Court dismissed a claim for a contribution by one insurer against another because the earthmoving plant loader that was involved in the accident was being operated at the time as a mechanical tool of trade. A tool of trade was defined to mean “the operation of your motor vehicle whilst engaged in … Continue reading

Motor policy indemnity refused for kidnap and assault by insured using insured vehicle (US)

By Patrick Bracher (ZA) on September 21, 2022 Posted in Insurance

A Montana Supreme Court rejected an extraordinary claim by the insured who had kidnapped, physically assaulted, threatened, restrained and injured his estranged wife using the insured vehicle in the course of the kidnap. The court had no difficulty in finding that the insured’s conduct was not accidental for the purposes of the policy and that … Continue reading

What circumstances must be disclosed by a director negotiating a contract? (Aus)

By Patrick Bracher (ZA) on September 16, 2022 Posted in Insurance

The insured company represented by its sole director and shareholder agreed to construct a residential aged care building on the property. The company failed to disclose at a material time that the company was in severe financial distress and unable to meet its obligations including tax obligations. The Australian Federal Court held that the failure … Continue reading

What are ‘circumstances’ known to a director under a D&O Policy (Aus)

By Patrick Bracher (ZA) on September 14, 2022 Posted in Insurance

Where a Directors and Officers Policy provided that the insurer was not liable in connection with any claim based on “any circumstance which was known about by any of the Directors or Officers or Company prior to the Period of Insurance”, it was held that the word “circumstance” meant a circumstance which was known by … Continue reading

Keeping a company’s contract alive creates a ‘personal advantage’ for a director under D&O Policy exclusion (Aus)

By Patrick Bracher (ZA) on September 12, 2022 Posted in Insurance

An Australian federal court held that where a director failed to disclose the financial distress of his company to the prejudice of the other contracting party under a constructions contract, the director “gained personal profit or advantage” for the purposes of an exclusion of the Directors and Officers Policy and no claim was payable by … Continue reading

Email to unattended mailbox is a ‘claim made’ under insurance policy (Aus)

By Patrick Bracher (ZA) on September 9, 2022 Posted in Insurance

An Australian federal court held that an email intimating a claim against the insured under a Directors and Officers Liability Policy to a mailbox that was not attended to was nonetheless “received” by the insured for the purposes of the policy. The claims made policy defined a ‘Claim’ as a “written notice received by a … Continue reading

Claim rejected for misrepresentation and fraudulent claim (Aus)

By Patrick Bracher (ZA) on September 5, 2022 Posted in Insurance

A claim for damage to a concrete pump fitted to a truck was denied by an Australian Supreme Court on the grounds of misrepresentation and nondisclosure regarding the pre-insurance unit’s history and a fraudulent claim in which pre-existing damage was denied. The insured had owned the unit for some time but had not insured it … Continue reading

Prescribed rate of interest is 9.0% from 1 September 2022

By Patrick Bracher (ZA) on August 31, 2022 Posted in General

The prescribed rate of interest changed with effect from 1 September 2022 to 9.0% per annum. The previous rate was 8.25%. According to the Prescribed Rate of Interest Act, interest on debts where no rate is prescribed is calculated at the repo rate plus 3.5%. The prescribed rate of interest applies to all debts unless … Continue reading

Insurance professional services exclusion applies to a sleep study company (US)

By Patrick Bracher (ZA) on August 29, 2022 Posted in Insurance

A Georgia US court found that the insurer did not have to defend a sleep study company from a negligent suit by the family of a deceased patient because a professional services exclusion applied to the claims in the underlying action. The company conducted sleep studies for its patients and sought an indemnity from the … Continue reading

Insurers not liable for shareholder claim for listeria outbreak (US)

By Patrick Bracher (ZA) on August 29, 2022 Posted in Insurance

A creamery was sued by shareholders who allege that the company’s share price declined because the executives breached their fiduciary duty by continuing to allow the company to produce and distribute ice cream when knowing that some products tested positive for listeria. The policy did not cover a shareholder lawsuit claiming financial harm but only … Continue reading

Cybercrime held to be a social engineering loss not computer fraud under policy

By Patrick Bracher (ZA) on August 19, 2022 Posted in Insurance

Cybercrime held to be a social engineering loss not computer fraud under policy The insured was defrauded when a bad actor tricked the company CEO into wiring nearly $600 000 into the bad actor’s bank account. It was held that the loss was covered under the social-engineering-fraud cover with a limit of $100 000 and not the … Continue reading

Shooting death excluded from insurance by battery and weapons exception (US)

By Patrick Bracher (ZA) on July 22, 2022 Posted in Insurance

This blog was co-authored by: Anitah Ndhlovu, Candidate Attorney When a man was shot outside a food store, the wife sued the store’s operator and sought the benefits of the store’s insurance liability policy. The claim failed because of two exclusions, namely an assault and battery exclusion and a weapons exclusion. The policy indemnified “those … Continue reading

Intentional loss exception excludes insurance cover for house burned down by daughter (US)

By Patrick Bracher (ZA) on July 22, 2022 Posted in Insurance

This blog was co-authored by: Anitah Ndhlovu, Candidate Attorney The insured, under a homeowner’s insurance policy, lived in a house with their 18 year old daughter, an “insured” under the policy, who ignited her father’s bedspread intending to make him mad. She could not put out the fire which destroyed the house. The claim against … Continue reading

The primacy of PAJA in judicial review proceedings involving administrative action

By Patrick Bracher (ZA) on July 21, 2022 Posted in General

This blog was co-authored by: Felix Le Roux, Candidate Attorney In the June 2022 case of Tsogo Sun Caledon (Pty) Ltd and Others v Western Cape Gambling and Racing Board and Another, involving a decision of a gambling board to impose conditions in respect of gambling licences, the Supreme Court of Appeal said the following: … Continue reading

Disposition ‘not made for value’ under s 26(1) of Insolvency Act means for no value at all

By Patrick Bracher (ZA) on July 7, 2022 Posted in General

The claimant’s claim was based on an allegation that a company unable to pay its debts with its liabilities exceeding its assets had sold 21 million shares at 27c per share and 7 300 000 million shares at 48c per share when the reasonable market value was allegedly 67c per share. The court refused to … Continue reading

All risks claimant is required by law to prove cause of event for insurance claim (US)

By Patrick Bracher (ZA) on July 5, 2022 Posted in Insurance

The claimant was insured under an all-risks insurance policy covering a vessel. The policy did not cover engine damage unless an accidental external event caused the damage. The vessel suffered catastrophic engine failure. The court held that the insured had to come forward with evidence that an external event caused the engine damage and the … Continue reading

Prescribed rate of interest is 7.75% from 1 May 2022

By Patrick Bracher (ZA) on June 20, 2022 Posted in General

The prescribed rate of interest changed with effect from 1 May 2022 to 7.75% per annum. The previous rate was 7.50%. According to the Prescribed Rate of Interest Act, interest on debts where no rate is prescribed is calculated at the repo rate plus 3.5%. The prescribed rate of interest applies to all debts unless … Continue reading

Claim is not made during claims-made policy period until formally made

By Patrick Bracher (ZA) on June 6, 2022 Posted in Insurance

When a manufacture’s product caused harm to an infant, the manufacture failed in its claims against its insurer under a claims–made policy because passing on news articles about the event to the insurer did not constitute a “claim” under the policy. A two-year-old infant swallowed small magnets known as “Buckyballs” which shredded his internal organs … Continue reading

US Court allows regulator to proceed with “shadow trading” claim as insider trading

By Patrick Bracher (ZA) on June 3, 2022 Posted in General

A San Francisco Court held that an executive may be held liable for “shadow trading” namely trading in securities of a similarly situated competitor’s shares while in possession of insider information about his own company. The defendant was a senior director of business development at a pharmaceutical company bound by the company’s insider trading policy. … Continue reading

Damages for data breach require actual harm (US)

By Patrick Bracher (ZA) on June 1, 2022 Posted in General

A New York Court dismissed the claim by two former employees against their professional services firm based on an alleged failure to protect their personal information in a data breach. The court held that a claimant for damages in these circumstances must prove actual harm. The employees’ had only speculated as to whether they might … Continue reading

Head-on collision at speed on the wrong side of the road not held a deliberate act – proof by inference (Aus)

By Patrick Bracher (ZA) on May 25, 2022 Posted in Insurance

Head-on collision at speed on the wrong side of the road not held a deliberate act – proof by inference (Aus) The evidence was that a motor cyclist drove his motor cycle at a high speed of about 90 to 100kph on the wrong side of the road in an urban area straight into the … Continue reading