Topic: Insurance

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Policy interpretation: flood endorsement (Botswana)

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

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)

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

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

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

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

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)

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)

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

This Supreme Court of Appeal judgment 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

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

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

Prescription and a continuing nuisance (UK)

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

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)

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

Anxiety leading to chocolate eating does not found a privacy invasion suit (US)

Access to drivers license numbers through an insurers “instant quote” website feature was held confirmed by a US appeal court to be no foundation for a claim for breach of privacy obligations because the claimants failed to show any concrete injury traceable or even possibly traceable to the disclosure. A complainant must plausibly allege concrete … Continue reading

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

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

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)

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

Delivery of record for PAJA review – Rule 53

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