Topic: Insurance

Subscribe to Insurance RSS feed

Covid-19 business interruption insurance claims and absence of a virus exclusion (USA) Part 3

In this Californian Court of Appeal judgment previously discussed here (Part 1 and Part 2) the insured also argued, to support its contention that it incurred a suspension of operations caused by a direct physical loss of or damage to property, that no express exclusion for loss or damage resulting “from any virus” was included … Continue reading

Disgorged funds to comply with authorities order is not an uninsurable penalty (US)

A New York court of Appeals held that a wrongful act liability policy covered funds that the insured disgorged as part of a settlement with the Securities and Exchange Commission.  The settlement payment was not excluded from insurance coverage as a “penalty imposed by law” under the policies. The policy provided coverage for “loss” that … Continue reading

Covid-19 business interruption insurance claims and suspension due to direct physical loss (USA) Part 2

The Californian Court of Appeal in this judgment and discussed here also considered whether the insured’s business was suspended due to direct physical loss of its property. The policy required suspension of operations caused by direct physical loss of property. The insured argued that regardless of the physical presence of the Covid-19 virus, it had … Continue reading

Covid-19 business interruption insurance claims and direct physical damage (USA) Part 1

In this Court of Appeal Judgement in the State of California, the Californian appeal court dealt authoratively with the question of whether a commercial property insurance policy provides coverage for a business’s lost income due to the Covid-19 pandemic. The court pointed out that while at that time no California appellate court had addressed the issue … Continue reading

Covid-19 business interruption claims and rental remission

This recent Cape High court judgment contains some useful guidance for insurers in adjusting covid-19 business interruption claims involving recovery or remission of rental. The court confirmed that as a matter of general principle: a lessee is entitled to claim rental remission where there is a deprivation of or lack of beneficial use of occupation … Continue reading

Avoidance of insurance policies – moral hazard and inducement (UK)

In this judgment, Berkshire Assets (West London) Limited v AXA Insurance Plc [2021] EWHC 2689 (Comm) the insured sought to recover an indemnity pursuant to a Contractors’ All Risks and Business Interruption policy. The insured denied liability and avoided the policy alleging that the insured failed to disclose the admitted fact that one of its directors … Continue reading

Avoidance of insurance policy for non-disclosure and misrepresentation (UK)

In this judgement, the English high court decided that the insurer was entitled to avoid an employer’s liability insurance policy on grounds of material non-disclosure and misrepresentation.  The insurers had shown that the facts misrepresented or not disclosed would have influenced the mind of a reasonably prudent underwriter in exercising their underwriting judgment as to … Continue reading

Liability insurance and joint retainer privilege

This judgement considered the interesting question of legal professional privilege, the rights of successors in title, and joint retainer privilege. The insured and the insurer jointly engaged attorneys to act on their behalf in relation to various claims relating to cosmetic surgery and the use of silicone breast implants.  The attorneys were appointed to act … Continue reading

Wrongfulness and liability for injury by animals

This blog was co-authored by: Bwanika Lwanga, Candidate Attorney In this January 2021 judgment the high court in Minister of Justice and Correctional Services v Kitcher and Another (874/2019) [2021] ZANCHC 12 considered the question of whether the minister could be held liable for harm from an animal attack on premises within their control. Mr … Continue reading

Householders liability insurance exclusion for anyone who usually lives at the insured address (Australia)

This judgment Re Murray (deceased) Crummer v AAI Limited ABN 2020 QSC 155 dealt with the meaning of a householder’s liability policy exclusion for liability for death or injury of anyone who usually lives at the insured address. The court said that the phrase “anyone who usually lives at the insured address” appeared to be a … Continue reading

When constitutional damages are claimable

This November 2021 Constitutional Court judgment contains a useful review and analysis of when it is appropriate to award constitutional damages. In terms of section 38 of the Constitution, a court may award damages for a violation of rights in the Bill of Rights. Section 38 refers to the granting of “appropriate relief”. The concept of … Continue reading

Conversion of non-life licence results in lapse of accident and health policies

Prior to conversion of its short-term licence to a non-life licence under the Insurance Act, 2017, the insurer underwrote accident and health policies with what are now both life and non-life risk components.  Under the Insurance Act non-life insurers are only permitted to conduct accident and health policies insuring costs or loss of income (not … Continue reading

Business interruption non-damage extension insurance indemnity periods

In this judgment,  the court held that the indemnity period applicable to the relevant non-damage business interruption extension of the policy was eighteen months and not three months as contended for by the insurer.  The judgment is fact specific and turns on the policy wording and structure. It establishes no new principles.  The court applied … Continue reading

US jury rejects restaurant Covid-19 insurance claim

Readers who have been following the Covid-19 business interruption litigation in the USA will know that the courts have largely, at summary judgment stage, dismissed claims for coverage alleging that the virus caused physical damage to insured premises. That question has been now been pronounced upon by a jury trial. A Missouri Federal jury considered … Continue reading

Silent cyber and ransomeware cover (US)

The insured was locked out of its computer systems with the hard drives encrypted as a result of a ransomeware attack.  It ultimately paid the requested ransom with four bitcoins valued at nearly $35 000 before it regained access to its computer systems.  The court held that, if fraud was established, the insurers would have to … Continue reading

Disclaimer of liability clauses

A contract of carriage had been concluded by way of an exchange of e-mails.  After conclusion of the contract, the customer had signed a credit application with standard trading conditions which contained an exemption from liability for loss or damage. The appeal court found that the credit application with the exemption clauses did not form … Continue reading

Indemnity Insurance involves payment for loss actually suffered by insured (Australian court)

In the judgment, Swiss Re International Se v LCA Marrickville (Pty) Limited, the court discussed the principle that an insured must, under a contract of indemnity, prove the extent or the amount of the loss claimed because the indemnity only concerns actual loss and the deductions to be made from the losses. The court confirmed … Continue reading

Tribunal upholds Prudential Authority penalty for unrecorded loan & dividends directive

An October 2021 decision of the Financial Services Tribunal upholding an administrative order, a directive, and a penalty by the Prudential Authority is worth noting.  The Tribunal held there was no basis for successfully challenging the penalty for an intergroup loan arrangement not recorded in writing and for unjustified dividends paid. A small licensed life … Continue reading

Liability of boom operator for personal injury

Some of our readers, like the author, will have experienced a near-miss from a descending boom at a carpark entrance.  In an October 2021 judgment, the plaintiff successfully claimed for personal injuries sustained when the boom at the carpark operated by the defendant descended and struck her. The plaintiff alleged that her injuries were caused … Continue reading
LexBlog