Topic: Insurance

Rule 41A and Bad Faith Mediation – Part 1

By Donald Dinnie on January 14, 2022 Posted in Insurance

In this Gauteng High Court judgement, the court provides some useful comments on the application of High Court Rule 41A requiring litigants to attempt to mediate their dispute, and the question of bad faith mediation. This is helpful, considering the embryotic stage of the rule and the paucity of case law or literature on the … Continue reading

Rejection of ‘the matter speaks for itself’ doctrine and the Onus of Proof in Medical Negligence cases (Part 3)

By Donald Dinnie on January 13, 2022 Posted in Healthcare, Insurance

This blog was co-authored by: Caitlin Gardiner, Candidate Attorney In this judgement in the Supreme Court of Appeal the claimant submitted that the hospital breached its statutory duty in that it failed to ensure the proper safe-keeping of the hospital records of the claimant and her cerebral palsied child. The court considered the application of res … Continue reading

Evaluating Expert Medical Evidence (Part 2)

By Donald Dinnie on January 12, 2022 Posted in Healthcare, Insurance

This blog was co-authored by: Caitlin Gardiner, Candidate Attorney In this claim, alleging that the hospital staff’s negligence during the claimant’s labour resulted in her child’s cerebral palsy, the Supreme Court of Appeal addressed the issue of how to assess expert evidence in a field where medical certainty is virtually impossible. In such circumstances a … Continue reading

Covid-19 business interruption claims and virus exclusions (USA)

By Donald Dinnie on January 7, 2022 Posted in Insurance

While this Ohio Appellate Court judgment found that the insured did not suffer direct physical loss or damage so as to warrant coverage, it also considered the application of the virus exclusion in the policy The exclusion reads: “We will not pay for loss or damage caused directly or indirectly by any of the following. … Continue reading

The law does not require impossibilities and its effect on prescription

By Patrick Bracher (ZA) on December 17, 2021 Posted in General, Insurance

In finding that the Road Accident Fund Act three year extinctive prescription period (with some exceptions) did not apply to the claimant who had become a person of unsound mind because of the motor accident, the Constitutional Court applied the impossibility principle (lex non cogit ad impossibilia). It was held that the claimant’s action had … Continue reading

The proceeds of an insurance life policy benefitting an insolvent belong to their trustee

By Donald Dinnie on December 10, 2021 Posted in Insurance

An unrehabilitated insolvent, who is a nominated beneficiary in terms of a life insurance policy, is not entitled to the proceeds of the policy to the exclusion of the trustees of their insolvent estate. The claimant was married in community of property to the deceased, his wife. A contract of insurance was concluded with the … Continue reading

Covid-19 business interruption insurance claims and closure orders by Civil Authorities (USA) Part 4

By Donald Dinnie on December 9, 2021 Posted in Insurance

This Californian Appeal Court judgment previously discussed here (Part 1, Part 2 and Part 3)) was also required to consider the insured’s argument that the Civil Authority Coverage Clause applies because the government orders were made in direct response to the continued and increasing presence of the Coronavirus, a dangerous physical condition, on and around … Continue reading

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

By Donald Dinnie on December 8, 2021 Posted in Insurance

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)

By Patrick Bracher (ZA) on December 7, 2021 Posted in Insurance

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

By Donald Dinnie on December 7, 2021 Posted in Insurance

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

By Donald Dinnie on December 6, 2021 Posted in Insurance

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

Ombud must apply appropriate processes to disputes of fact

By Patrick Bracher (ZA) on December 3, 2021 Posted in General, Insurance

In November 2021 the Financial Services Tribunal emphasised that “time and again it has been pronounced that when there is a material dispute of fact, there should be a hearing of oral evidence”. It is only once the material disputes of fact are addressed that one can conduct an enquiry into the negligence, causation and … Continue reading

Covid-19 business interruption claims and rental remission

By Donald Dinnie on December 1, 2021 Posted in Insurance

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)

By Donald Dinnie on November 30, 2021 Posted in Insurance

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

Fitness and propriety re significant owner’s deadline 1 December 2021

By Patrick Bracher (ZA) on November 19, 2021 Posted in General, Insurance

Anyone who is a significant owner of a financial institution is required by Joint Standard 1 of 2020 to have in place procedures for assessing and attesting to fitness and propriety by 1 December 2021. This must thereafter be done on an annual basis and on written request by either Authority. The Joint Standard 1 of … Continue reading

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

By Donald Dinnie on November 19, 2021 Posted in Insurance

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

By Donald Dinnie on November 18, 2021 Posted in Insurance

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

Professional Indemnity Insurance and aggregation of claims (UK)

By Donald Dinnie on November 12, 2021 Posted in Insurance

This UK court of appeal judgment Lord Bishop of Leeds v Dixon Coles & Gill [2021] EWCA Civ 1211 considered whether claims arising from one series of related acts or omissions could be aggregated. The insured, an attorney’s practice, held a professional indemnity policy with a limit of indemnity for one claim of £2 million. The … Continue reading

Wrongfulness and liability for injury by animals

By Donald Dinnie on November 10, 2021 Posted in Insurance

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)

By Donald Dinnie on November 9, 2021 Posted in Insurance

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

By Donald Dinnie on November 9, 2021 Posted in Insurance

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

By Patrick Bracher (ZA) on November 4, 2021 Posted in Insurance

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

By Donald Dinnie on November 3, 2021 Posted in Insurance

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