Patrick Bracher (ZA)

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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

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