Patrick Bracher (ZA)

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Baby-sitting may be a “business” under an insurance policy exclusion and a word on ambiguity (US)

Baby-sitting may be a “business” under an insurance policy exclusion and a word on ambiguity (US) In a tragic incident, a baby-sitter who received $25 per day when she provided home daycare services, was caring for a deceased infant who died while in her care from bedding asphyxia.  It was held that the baby-sitter did … Continue reading

Insurer’s refusal to pay excess body shop storage fees upheld (US)

Insurer’s refusal to pay excess body shop storage fees upheld (US) A Massachusetts Appeals Court refused to allow a class action against an insurer accused of deducting excess body shop storage fees for vehicles deemed total losses because the policy wording permitted the deduction.  Under the policy, the insurer agreed to pay for “reasonable expenses … Continue reading

Transfer of funeral insurance business

A court ordered a life company to transfer a portfolio of funeral business to the new life underwriter when the independent intermediary terminated its relationship with the company and  moved the business to another life insurer.  The court held that once the intermediary agreement between life insurer and intermediary was terminated, the parties were restored … Continue reading

PAJA applies to regulations made by a Minister

The Supreme Court of Appeal has reaffirmed that the making of regulations by a Minister acting in terms of a statute constitutes administrative action within the meaning of the Promotion of Administrative Justice Act, 2000.  This means that such regulations can be challenged if they are outside the powers of the Minister under the enabling … Continue reading

Data hack leading to payment card replacements indemnified under general liability policy

The massive 2013 data hack affecting Target Corp with losses of $138 million in bank settlements by Target has led to a judgment against the insurer for the insured “loss of use of tangible property that is not physically injured”.  The policy required “property damage” caused by an “occurrence” which included an “accident”.  The court … Continue reading

Insuring cyber risks: remember its OT as well as IT

The buzz about the Internet of Things of a few years ago has died down but the cyber world and its things are becoming increasingly interconnected.  When considering insuring cyber risks, insurers must remember it is not only IT (Information Technology) but also OT (Operational Technology) that needs to be evaluated.  Hackers know better than … Continue reading

In-duplum rule applies to arrear interest not if capital payment deferred

The in-duplum rule essentially provides that interest stops running when the unpaid interest equals the amount of the outstanding capital.  Our courts have repeatedly made clear that the in-duplum rule limits arrear interest to the outstanding capital sum.  The agreed accrual of interest on a capital sum, payment of which has been postponed, is not … Continue reading

Insurance contamination exclusion upheld as unambiguous and properly located in policy

Faced with an unambiguous lead contamination exclusion, a damages claimant, alleging personal injury to a child from ingesting lead from the paint in a rented property, unsuccessfully contended that the exclusion was unenforceable because it was allegedly hidden 30 pages into the policy. According to the exclusion, the insurance did not apply to injury “arising … Continue reading

Use of background material when interpreting statutes

When the Constitutional Court had cause to interpret a section of the Labour Relations Act regarding the requirements for a secondary strike, the court had recourse to what it called the ‘main secondary source’ namely the Parliament’s Explanatory Memorandum on the Labour Relations Bill in order to gather the intention of the legislature. A secondary … Continue reading

Financial Services Tribunal members

The FSCA has published a list of the members of the Financial Services Tribunal.  The Tribunal is headed by Chairperson Justice Y Mokgoro and led in the field of action by Deputy Chairperson Judge LTC Harms. There are 21 other capable members most of whom are experienced advocates. The Financial Services Tribunal has proved to … Continue reading

“Consequent upon” in policy wording connotes ‘but-for’ causation (US)

A Texas court, whose judgment was confirmed on appeal, found that an excluded loss “consequent upon” handing over gold coins to another against a fraudulent cheque invokes a more direct type of causation than “due to” or “arising out of”.  A loss sustained “consequent upon” an event connotes ‘but-for’ causation and the consequence must be … Continue reading

Ten things to know about insurance regulation in the Asia Pacific Region 2022

Norton Rose Fulbright has published its 2022 edition of Ten Things to Know about insurance regulation in the Asia Pacific region. The publication identifies the regulator, whether branches of foreign insurers are permitted, the restrictions on foreign direct investment, notifications or approvals required for change of control, the nature of the capital regime, group supervision … Continue reading

The nature of credit insurance

In a UK decision it was argued that the position in which the credit insurer ended up was inherently suspicious because it was ‘circular’ in that, if the insurer incurred liability to one person, it could recover from the sole shareholder of the other party under a counter-indemnity. The court said: “However, that is the … Continue reading

The “provision of goods and services” as government procurement under section 217 of the Constitution

The “provision of goods and services” as government procurement under section 217 of the Constitution The Supreme Court of Appeal held that the requirements of section 217(1) of the Constitution regarding fair, equitable, transparent, competitive and cost-effective procurement were not met where a private contracting party was providing services to smallholder farmers to promote beef … Continue reading