Topic: Insurance

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Cyber risk cover – the pandemic lesson

One lesson for insurers from the COVID-19 pandemic is that carefully considered wording for potentially massive losses is essential. Cyber risk can lead to such losses. Here are links to some of the articles we have written on cyber risk to remind you: Cyber risk warnings for insurers Cyber cover must be specifically provided or … Continue reading

Interpreting insurance contracts: a refresher (part 1)

The Supreme Court of Appeal judgment of Centriq Insurance Company Limited and Oosthuizen contains a useful summary of the general principles of interpretation of insurance policies and other contracts: Insurance policies are contracts like any other. Contract provisions must be construed having regard to their language, context and purpose in what is a unitary exercise. … Continue reading

Refund of overpayment of insurance benefit because error was excusable

An insurer (like any other erroneous payer) can recover a benefit erroneously paid under an insurance policy if its conduct in making that payment was not inexcusably negligent. In deciding whether the erroneous conduct is excusable, the court will take into account a number of factors, including: the relationship between the payer and the recipient; … Continue reading

Insurance renewal not concluded by emails in the absence of clear acceptance (Aus)

When a fire and other perils policy came up for renewal on 24 August 2018, the insurer and the insured’s broker exchanged emails regarding renewal terms and hold-covered arrangements. The Victoria Supreme Court in Australia found that cover had not been renewed nor extended because the insured had not unequivocally accepted the renewal terms nor … Continue reading

DUI proved despite no conclusive blood test

The motor policy considered in Bantho v Alexander Forbes Insurance Co Ltd excluded an indemnity if the accident occurred while the driver was driving under the influence of intoxicating liquor or while the level of alcohol in the bloodstream exceeded the statutory limit. The court applied the exclusion despite a dispute about the accuracy of … Continue reading

COVID-19 and the insurance market

Have a listen to my podcast discussion with the editor of Cover magazine on the potential implications of COVID-19 on the insurance industry in South Africa. We discuss business interruption insurance, liability insurance, event cancellations and travel insurance. Where to start in evaluating insurance exposure for brokers, insurers and reinsurers is covered. Traditional business interruption … Continue reading

‘Occurrence’ in insurance policies

The test enunciated by the English court in Kuwait Airways Corporation v Kuwait Insurance Co [1996] 1 Lloyds Rep 664, confirmed in Mann and Another v Lexington Insurance Company [2000] is no different in South African law. “An ‘occurrence’ (which is not materially different from an event or happening, unless perchance the contractual context requires … Continue reading

The Big Read Book series – Volume 4

Norton Rose Fulbright’s collection of South African insurance judgments for 2019 is now available here. 2019 saw a limited number of insurance disputes determined by way of litigation. The various alternative dispute resolution mechanisms used by the insurance industry continue to function well and deliver a tremendous service to insured and insurer alike. Volume 4 of … Continue reading

Council for Medical Schemes banning of low cost benefit options

Healthcare has found its way into everyday conversations more so than in recent years. The steadfast movement towards a National Health Insurance has inspired vigorous yet contrary emotions with each side holding their position with equal conviction. On 4 December 2019 a decision by the Registrar and Chief Executive Officer of the Council for Medical … Continue reading

Insurance claims and COVID-19

If you haven’t already dusted off the business interruption, liability and event cancellation policies you have underwritten, or placed for an insured, and checked for coronavirus coverage, now is the time to do so. Exposure and benefits of both business interruption coverage (covering the insureds losses from an abrupt shutdown) and contingent business interruption coverage … Continue reading

Interpretation of an EAR Policy’s defect exclusion clause

A Greek appeal court was recently called upon to interpret the exclusion under the Contractors’ Erection All Risks Policy which read: “the insurer shall not Indemnify the Insured for … The cost of replacement, repair or rectification of loss due to defective material and/or workmanship. This exclusion shall be limited to the insured items directly … Continue reading

Causation, the ‘but-for’ test and flexibility

A defendant is not liable unless their wrongful conduct in fact causes the claimant’s harm. The defendant is also not liable merely because their conduct in fact caused the claimant’s harm. There must be both factual and legal causation. The long accepted test of factual causation is the ‘but-for’ test. One asks whether the claimant’s … Continue reading

Damage caused by incorrect labelling is not insured as ‘arising out of’ the product manufactured (US)

A bulk supplier of prescription drugs, which was not a manufacturer, supplied drugs in bulk to a retailer. A customer of the retailer suffered severe bodily injury because of misleading and defective labelling by the retailer. The retailer was entitled to the benefit of the distributor’s insurance if any claim was ‘only with respect to … Continue reading

Insurers, personal injury damages and medical expenses

Insurers dealing with and defending personal injury claims under a liability policy should bear in mind the general principles regarding claims for damages in those cases. The plaintiff who claims damages for the cost of future medical expenses bears the onus of proving the damages claimed and that the damages claim is reasonable. Generally it … Continue reading

Reviewing the law on ‘reasonable precautions’

The reasonable precautions clause which commonly appears in policies requires the insured to take reasonable steps to safeguard the insured property or prevent accidents and minimise loss, damage or liability (or variations thereof). The clause most likely requires proof of recklessness on the part of the insured but interestingly, there is no authoritative judgment by … Continue reading

Insurance, consensus and non-existent property

The basis for contractual insurance liability is actual consensus supported by the insureds’ and the insurers’ serious intention to be legally bound to what they have agreed to. There is no consensus if there is a material mistake relating to the identity of the parties to the insurance contract, or the object of the risk, … Continue reading

Offers of settlement and time-bars in insurance policies

In South Africa, for example, under the Policyholder Protection Rules or the Short-term Ombud’s Rules the running of statutory prescription and time-bar limitation periods provided for in an insurance policy may be suspended while a dispute is resolved. German law also provides for some circumstances in which the limitation period in an insurance coverage dispute … Continue reading
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