Patrick Bracher (ZA)

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Insurance indemnity denied because insured withheld material financial information (US)

The insured sought loss of hire coverage from various US and London insurers claiming in part that its factory processing vessel was unable to process fish in Alaska because of engine damage. The court held that the insured had breached an express duty to cooperate by withholding from the adjuster’s historical financial information, thus discharging … Continue reading

When is a sub-subcontractor an insured (AUS)

An Australian supreme court was faced with the question whether a sub-subcontractor was a named insured or agent of the named insured under a general liability policy relating to demolition work on a construction site where a fire attributed to the conduct of the sub-subcontractor caused damage. The court held that on the policy wording … Continue reading

Financial Services Tribunal hold FSCA has no penalty jurisdiction over foreign persons

In Viceroy Research Partnership LLC and others against the Financial Sector Conduct Authority, the Financial Services Tribunal was faced with the question whether the FSCA had the authority to impose administrative penalties jointly and severally on three partners in a foreign partnership who were not South African citizens nor residents, and the acts allegedly committed … Continue reading

Municipal ordinance banning pit bulls upheld in USA

Several dog owners sued the City of Council Bluffs, Iowa, challenging the constitutionality of an ordinance prohibiting pit bull dogs, and lost. The City enacted an ordinance in 2005 which prohibited “any person to own, possess, keep, exercise control over, maintain, harbor, transport or sell within the City of Council Bluffs, Iowa any pit bull. … Continue reading

The nature of a broker’s mandate

In a decision involving a broker who introduced business to a medical scheme, the court drew an important distinction between a mandate to enter into contracts on behalf of the medical scheme as the principal and a mandate or authority to introduce business to the medical scheme. Where a principal appoints someone to perform juristic … Continue reading

What is ‘replacement’ of a statute? (Aus)

The interpretation clause in a policy of insurance included a provision that “references to a statute law also includes all its amendments or replacements”.  The Australian Quarantine Act had been replaced by the Bio Security Act, 2015 before the policy came into force but was held to be a replacement statute.  The court held that … Continue reading

Downing of Flight 17 by Russian-backed separatists was ‘insurrection’ under war exclusion (US)

The family of a student, who died in 2014 when the Donetsk People’s Republic, a Russian-backed separatist group in eastern Ukraine, shot down Malaysia Airline’s Flight 17, sued Western Union for damages for “providing ongoing and essential financial support to the DPR by facilitating money transfers”.  The court held that Western Union could not recover … Continue reading

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

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

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

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)

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

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

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