Patrick Bracher (ZA)

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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

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

By Patrick Bracher (ZA) on May 23, 2022 Posted in Insurance

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)

By Patrick Bracher (ZA) on May 20, 2022 Posted in Insurance

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

Intentional act, even by mistake, is not accidental and not insured (US)

By Patrick Bracher (ZA) on May 18, 2022 Posted in Insurance

Intentional act, even by mistake, is not accidental and not insured (US) A homeowner trespassed on her neighbour’s property and cleared their land thinking it was her own property. The court held that this was an intentional act and not an accident even if the act caused unintended harm. The policy covered “damaged … property … Continue reading

No insurance cover for assault because of assault & battery exclusion (US)

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

No insurance cover for assault because of assault & battery exclusion (US) A Missouri court found that the insurer had no duty to indemnify a bar and its owner for an incident that occurred where a bar employee attacked a patron in the parking lot causing bodily injury. The policy contained an exclusion for bodily … Continue reading

Prescribed rate of interest is 7.75% from 1 May 2022

By Patrick Bracher (ZA) on April 29, 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 3.50%. The prescribed rate of interest applies to all debts unless … Continue reading

Cover for money as defined did not include bank deposits (Aus)

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

An Australian court found that the definition of insured property in an all-risks policy covering money losses did not include a loss suffered by the insured operator of automatic teller machines did not cover losses in its bank account. The claimant blamed the defendant security company for the losses and sought join their Lloyd’s insurer … Continue reading

Transfer of funeral insurance business

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

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

By Patrick Bracher (ZA) on April 13, 2022 Posted in General

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

By Patrick Bracher (ZA) on April 1, 2022 Posted in Insurance

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

A settlement offer must be accepted unequivocally without variance (US)

By Patrick Bracher (ZA) on April 1, 2022 Posted in Insurance

A US case has reaffirmed that where a settlement offer is made it must be accepted unequivocally and without variance of any sort otherwise it is not an acceptance but a rejection or counteroffer. A settlement offer and acceptance is a contract formed like any other contract. Settlement agreements must meet the same requirements as … Continue reading

Insuring cyber risks: remember its OT as well as IT

By Patrick Bracher (ZA) on March 7, 2022 Posted in Insurance

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

By Patrick Bracher (ZA) on March 5, 2022 Posted in General

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

Failure to prove that tacit term required for business efficacy and prescription

By Patrick Bracher (ZA) on March 4, 2022 Posted in General

The appellant municipality failed to prove that a tacit term should be included in a land sale contract that a closure and rezoning had to be successfully finalised within a reasonable time after the sale. The court found that it was not a term necessary to give business efficacy to the contract. A tacit term … Continue reading

Insurance contamination exclusion upheld as unambiguous and properly located in policy

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

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

By Patrick Bracher (ZA) on March 2, 2022 Posted in General

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

By Patrick Bracher (ZA) on February 24, 2022 Posted in General

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)

By Patrick Bracher (ZA) on February 24, 2022 Posted in Insurance

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

By Patrick Bracher (ZA) on February 15, 2022 Posted in Insurance

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

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

Prescription runs from date of acceptance of repudiation of a contract

By Patrick Bracher (ZA) on February 2, 2022 Posted in Insurance

The Supreme Court of Appeal held that where one party to a contract repudiates the contract by expressing an intention not to be bound by their obligations, extinctive prescription to defeat a claim for damages or performance runs from the date that the other party accepts the repudiation and cancels the contract. A contract between … Continue reading

A judgment with a 30 year prescription period includes a maintenance order

By Patrick Bracher (ZA) on January 27, 2022 Posted in General

The Supreme Court of Appeal, not surprisingly, found that a maintenance order made by a court is subject to a 30 year prescription period because it is a “judgment debt” for the purposes of section 11(a)(ii) of the Prescription Act of 1969. The appellant husband had an unpaid maintenance debt of over R3.5 million as a … Continue reading

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

By Patrick Bracher (ZA) on January 25, 2022 Posted in General

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

Prescribed rate of interest is 7.25% from 1 January 2022

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

The prescribed rate of interest changed with effect from 1 January 2022 to 7.25% per annum. The previous rate was 7.00%. 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