Topic: Insurance

Policy interpretation: flood endorsement (Botswana)

By Donald Dinnie on September 22, 2023 Posted in Insurance

This 2012 judgment in which Norton Rose Fulbright successfully acted for the insurer, is worth revisiting in the context of the unprecedented levels of flooding being experienced in South Africa (and around the world). The insured had been engaged by the Government of Botswana to construct a dam and was required to design and construct … Continue reading

Accumulation concerns for cyber business

By Patrick Bracher (ZA) on September 20, 2023 Posted in Insurance

A Munich Re management board member has stated that the insurer is prepared to divest cyber business over accumulation concerns. The board member said that there is a need to recognise and understand accumulation potential in order to develop a sustainable cyber insurance market. Overexposure could lead to failures. Other insurers are said to be increasing … Continue reading

Medmal claim unsuccessful for failure to notify request for medical records (US)

By Patrick Bracher (ZA) on September 20, 2023 Posted in Healthcare, Insurance

A Maryland US court declined a doctor’s request for an indemnity from his medical malpractice insurers because the insured doctor failed to report a request for medical records from the patient’s lawyer as required by the policy during the policy period. The attorney’s request for medical records was sent on 20 April 2021. The insurance policy … Continue reading

Other insurance clauses lead to pro rata sharing no matter how elaborate (US)

By Patrick Bracher (ZA) on September 19, 2023 Posted in Insurance

It is a universal principle of insurance that where two policies covering the same loss purport to cancel each other out and only cover losses in excess of what other insurers cover, liability will be shared on a pro rata basis, usually equally. In a Georgia US decision regarding coverage for the same losses under … Continue reading

Private hospitals cannot employ healthcare practitioners according to the HPCSA’s Rules

By Lisa Kriegler on September 18, 2023 Posted in Healthcare, Insurance

Most people are not aware that according to the Health Professions Council of South Africa’s rules, private hospitals cannot employ doctors. While no single provision prevents a private hospital from employing a healthcare practitioner, various health legislation and guidelines read together do. Under the National Health Act, 2003, a private health establishment is a health … Continue reading

Extinction of liability for medical malpractice by prescription

By Lisa Kriegler on September 18, 2023 Posted in Healthcare, Insurance

Chapter III of the Prescription Act, 1969 deals with the extinction of debts by prescription. But how does this relate to personal injury cases? Most claims for damages prescribe in three years, but prescription does not run against minors (people under the age of 18), those with severe mental and intellectual disabilities, or those under … Continue reading

Subrogation – The circumstances and remedies for an insurer’s compromised rights

By Bongubuhle Sibanda on September 15, 2023 Posted in Insurance

An indemnity policy constitutes a contractual agreement in terms of which the insurer indemnifies the insured in the event of a loss. The policy is neither intended to unjustifiably enrich nor undercompensate the insured. Its primary purpose is to restore the insured to their prior financial position subject to indemnity limits and avoid double indemnity. … Continue reading

Insurance claims rejection for failure of insured to submit to examination under oath (US)

By Patrick Bracher (ZA) on September 14, 2023 Posted in Insurance

A Massachusetts appeal court refused to uphold an insurer’s fire claim rejection that was based on an alleged failure of the insured to submit to a “reasonably required” examination under oath in the course of investigating the claim because, on the facts, the insured had not wilfully and without excuse refused to present its president … Continue reading

Imputed knowledge of insurers (UK)

By Donald Dinnie on September 12, 2023 Posted in Insurance

In this English judgment, the court considered whether it was appropriate to impute to individual underwriters’ material information they did not actually know, but the claims team did. The George Hotel was destroyed in a fire in July 2019. The first claimant, The George on High Limited, owned the hotel but the hotel and restaurant … Continue reading

Section 35 of COIDA – Liability Insurance

By Donald Dinnie on September 8, 2023 Posted in Insurance

This Supreme Court of Appeal judgment http://www.saflii.org/za/cases/ZASCA/2021/16.pdf dealt with the case of the plaintiff who was mistreated and injured in the course of a protest by trade union members on premises where she was employed. The question was whether her injuries constituted an ‘accident’ as defined under section 1 of the Compensation for Occupational Injuries … Continue reading

Building regulation exclusions in a liability policy (Aus)

By Donald Dinnie on September 7, 2023 Posted in Insurance

In this Australian judgment previously dealt with here the court had to consider whether the insured’s claim to be indemnified for its liability for a slip and trip claim was excluded by reason of the building and local authority regulation exclusions which read: “We do not cover We will not pay for any loss, damage … Continue reading

Arising from, in connection with, directly or indirectly, arising directly or indirectly from or in any way connected with: insurance (Aus)

By Donald Dinnie on September 6, 2023 Posted in Insurance

This Australian judgment considered whether the insurer could correctly rely on a number of exclusions to a claim by its insured for cover under the liability section of the policy. The policy used two composite formulations to connote the requisite relationship between the liability and the exclusion. The first formulation excluded liability “arising from, or … Continue reading

What is ‘good cause’ for courts to set aside an arbitration agreement?

By Tristan Marot on September 4, 2023 Posted in Insurance

The August 2023 High Court case of Horn & Another v Nel & Others discusses when, in terms of Section 3(2) of the Arbitration Act, a court can set aside a valid arbitration agreement. The applicants asked the court to set aside an arbitration agreement concluded in terms of a dispute resolution clause of a … Continue reading

Prescription and a continuing nuisance (UK)

By Patrick Bracher (ZA) on September 4, 2023 Posted in Insurance

This English Supreme Court case arose out a major oil spill that occurred off the coast of Nigeria in December 2011. Two Nigerian citizens sued two companies, one in Nigeria and one in England, that were allegedly responsible for the oil spill just one week before the sixth year claims limitation (prescription) period under English … Continue reading

Bankers blanket bond insurance

By Donald Dinnie on August 29, 2023 Posted in Insurance

This insurance, so named because the word “blanket” indicates that the insurance covers the conduct of all the bank’s employees without listing them individually, dates back to 1911. Bankers blanket bond insurance (BBB insurance) was pre-dated by a fidelity bond available to banks for named employees and providing cover for losses arising from hold-ups or … Continue reading

Non-disclosure of termite infestation in house sale is not insured property damage and emotional distress exclusion applied (US)

By Patrick Bracher (ZA) on August 28, 2023 Posted in Insurance

The insured was sued by purchasers of his home for negligently or deliberately failing to disclose termite infestation at the time of the sale. He unsuccessfully sought cover under his homeowner insurance policy because the policy covered only property damage “due to an occurrence” whereas the property damage the purchasers experienced was not due to … Continue reading

Director must refund defence costs to D&O insurer despite alleged partial success (US)

By Patrick Bracher (ZA) on August 22, 2023 Posted in Insurance

A Delaware bankruptcy judge held that a D&O insurer can clawback more than $6 million in advancements of costs to the director’s criminal defence lawyers even if some charges against the director were dropped for practical reasons, not because of the director’s innocence. The case stems from the notorious conduct of the CEO of Insys Therapeutics … Continue reading

Remote Commissioning of affidavits post covid is not condoned by the High Court unless exceptional circumstances exist

By Paulette Khumalo on August 11, 2023 Posted in Insurance

In a July 2023 Judgment, the High Court considered whether a commissioner of oaths is able to commission a document where a deponent is not physically present at commissioning. The court was required to consider whether a founding affidavit to an application as well as the replying affidavit had been properly commissioned in compliance with … Continue reading

Insurable interest (UK)

By Donald Dinnie on August 8, 2023 Posted in Insurance

This judgment is the appeal of the judgment previously blogged on here. The question was whether insurers could refuse to pay a claim under an All Risks Marine Cargo Open Policy because the insured had no insurable interest in the subject matter of the property cargos of grain. The insured had been a victim of … Continue reading

Requirements for and interpretation of a trust deed

By Patrick Bracher (ZA) on August 7, 2023 Posted in Insurance

The appellants in the Supreme Court of Appeal challenged the validity of a trust deed and the appointment of the trustee. The settlor of the trust appointed a trustee to administer the trust after his death, using the words “the office of the trustee shall descend on the first trustee and thereafter to the eldest … Continue reading

Events, conditions and benefit groups in a life policy lead to multiple claims

By Donald Dinnie on July 28, 2023 Posted in Insurance

This blog was co-authored by Maano Manavhela, Candidate Attorney. A life insured, who suffered heart and arterial disease in April 2012 requiring a coronary stent and was paid 10% of a benefit amount, a bi-femoral bypass and paid 90% of the benefit amount in July 2012, was awarded another 100% of the benefit amount following … Continue reading

Insurer entitled to provide security for disputed storage costs to get vehicle released

By Patrick Bracher (ZA) on July 27, 2023 Posted in Insurance

The High Court has permitted a motor insurer to put up security for the disputed balance of motor vehicle storage costs in order to enable the insurer to get release of the vehicle and to stop storage charges being incurred. The insurer paid out the insured for the full value of the seriously damaged vehicle … Continue reading

Delivery of record for PAJA review – Rule 53

By Patrick Bracher (ZA) on July 18, 2023 Posted in Insurance

Where an administrative body is required to deliver a copy of the record on the basis of which the administrator made or didn’t make a decision, it is of no concern that the documents sought are voluminous and the requested list is extensive. If the documents are properly identified as documents relevant to the decision-making … Continue reading