Topic: Insurance

Shop owners need to reasonably protect their patrons

By Rethabile Shabalala and Anika de Kock on May 25, 2022 Posted in Insurance

The High Court in Gqeberha has confirmed that the shop owner has the legal duty to take the reasonable steps to prevent harm to its patrons and to take the reasonable steps to warn customers of potential dangers. Whilst shopping at the store of the defendant, the claimant, slipped and fell due to cake flour … Continue reading

Head-on collision at speed on the wrong side of the road not held a deliberate act – proof by inference (Aus)

By Patrick Bracher (ZA) on May 25, 2022 Posted in Insurance

Head-on collision at speed on the wrong side of the road not held a deliberate act – proof by inference (Aus) The evidence was that a motor cyclist drove his motor cycle at a high speed of about 90 to 100kph on the wrong side of the road in an urban area straight into the … Continue reading

Baby-sitting may be a “business” under an insurance policy exclusion and a word on ambiguity (US)

By Patrick Bracher (ZA) on May 23, 2022 Posted in Insurance

Baby-sitting may be a “business” under an insurance policy exclusion and a word on ambiguity (US) In a tragic incident, a baby-sitter who received $25 per day when she provided home daycare services, was caring for a deceased infant who died while in her care from bedding asphyxia. It was held that the baby-sitter did … Continue reading

Insurable Interest (England)

By Donald Dinnie on May 20, 2022 Posted in Insurance

Insurable Interest (England) In this High Court of Justice decision the insured claimed under a marine cargo open policy. The insured had purchased cargos of grain under various contracts and paid for those against presentation by the sellers of warehouse receipts issued by the warehouses. The warehouses were however acting fraudulently in issuing multiple warehouse receipts … Continue reading

Insurer’s refusal to pay excess body shop storage fees upheld (US)

By Patrick Bracher (ZA) on May 20, 2022 Posted in Insurance

Insurer’s refusal to pay excess body shop storage fees upheld (US) A Massachusetts Appeals Court refused to allow a class action against an insurer accused of deducting excess body shop storage fees for vehicles deemed total losses because the policy wording permitted the deduction. Under the policy, the insurer agreed to pay for “reasonable expenses … Continue reading

Insurance, liquidation and business rescue

By Donald Dinnie on May 19, 2022 Posted in Insurance

Insurance policies, particularly commercial policies providing business interruption, may contain provisions dealing with the consequences which flow for the parties, and the question of continuing cover and any indemnity, in the event of the liquidation of an insured. The relevant clauses are often outdated and should be reviewed having regard to the relevant provisions of … Continue reading

Warranty and Indemnity insurance

By Donald Dinnie on May 18, 2022 Posted in Insurance

Insurers and intermediaries involved in providing warranty and indemnity insurance will be interested in this recent judgment dealing with contractual warranties and an indemnity of EBS International (Pty) Limited and another v Shaun Edward Wright and which is relevant to any subrogated recovery. The seller had represented that its tax affairs were in order. Those … Continue reading

Intentional act, even by mistake, is not accidental and not insured (US)

By Patrick Bracher (ZA) on May 18, 2022 Posted in Insurance

Intentional act, even by mistake, is not accidental and not insured (US) A homeowner trespassed on her neighbour’s property and cleared their land thinking it was her own property. The court held that this was an intentional act and not an accident even if the act caused unintended harm. The policy covered “damaged … property … Continue reading

Entitlement to indemnity and “Interests of Other Parties” clause (Australia)

By Donald Dinnie on May 17, 2022 Posted in Insurance

In this judgment the appeal court had to consider whether the claimant who owned goods damaged by fire at the insured’s warehouse premises was entitled to an indemnity under the relevant policy of insurance. The lower court held that on a proper construction of the “interests of other parties” clause in the policy as interpreted … Continue reading

No insurance cover for assault because of assault & battery exclusion (US)

By Patrick Bracher (ZA) on May 16, 2022 Posted in Insurance

No insurance cover for assault because of assault & battery exclusion (US) A Missouri court found that the insurer had no duty to indemnify a bar and its owner for an incident that occurred where a bar employee attacked a patron in the parking lot causing bodily injury. The policy contained an exclusion for bodily … Continue reading

Fraudulent insurance claims

By Donald Dinnie on May 12, 2022 Posted in Insurance

Recent media reports highlight the challenges faced by the insurance industry in dealing with fraudulent insurance claims. Reportedly South African life insurers detected 4287 fraudulent and dishonest claims worth R787.6 million for the 2021 year. This blog frequently reports on South African judgments, and those from around the world, dealing with rejection of fraudulent claims. … Continue reading

Declining to quote is not a refusal to insure

By Donald Dinnie on April 14, 2022 Posted in Insurance

In this matter the question arose whether there had been a material non-disclosure of a refusal by an insurer to insure. The relevant insurer had declined to furnish a quotation. In proposing for the insurance, the insured had been asked four questions which the court categorised as referring to the insurance cover in existence at … Continue reading

Cover for money as defined did not include bank deposits (Aus)

By Patrick Bracher (ZA) on April 14, 2022 Posted in Insurance

An Australian court found that the definition of insured property in an all-risks policy covering money losses did not include a loss suffered by the insured operator of automatic teller machines did not cover losses in its bank account. The claimant blamed the defendant security company for the losses and sought join their Lloyd’s insurer … Continue reading

Transfer of funeral insurance business

By Patrick Bracher (ZA) on April 14, 2022 Posted in Insurance

A court ordered a life company to transfer a portfolio of funeral business to the new life underwriter when the independent intermediary terminated its relationship with the company and moved the business to another life insurer. The court held that once the intermediary agreement between life insurer and intermediary was terminated, the parties were restored … Continue reading

Insurance and reasonable precautions clauses (Australia)

By Donald Dinnie on April 7, 2022 Posted in Insurance

In this recent Australian judgment dealing with broker liability, in which the broker ultimately conceded a breach of a duty of care of the insured to draw to their client’s attention a policy exclusion relevant to the insured’s pool for which the claim was made when the empty pool lifted, the court held that despite … Continue reading

Insurance and meaning of self-insured retention (US)

By Donald Dinnie on April 6, 2022 Posted in Insurance

A self-insured retention is the amount of loss that a policyholder must pay out of pocket before coverage kicks in. In this judgment Colonial Pipeline Company v AIG Specialty Insurance Company, 1:19 –cv-762-MLB (US District Court Georgia, the policy included a US$10 million self-insured retention. The insurer would “pay covered Loss, in excess of the … Continue reading

Pollution Exclusions and a Possible Claim (US)

By Donald Dinnie on April 5, 2022 Posted in Insurance

In this judgment Colonial Pipeline Company v AIG Specialty Insurance Company, 1:19 –cv-762-MLB in the US District Court Georgia the insured had discovered a gasoline leak in its petroleum system which caused the insured substantial damages. The insurer declined to indemnify the insured for those damages. One of the disputes was whether the policy covered a … Continue reading

Data hack leading to payment card replacements indemnified under general liability policy

By Patrick Bracher (ZA) on April 1, 2022 Posted in Insurance

The massive 2013 data hack affecting Target Corp with losses of $138 million in bank settlements by Target has led to a judgment against the insurer for the insured “loss of use of tangible property that is not physically injured”. The policy required “property damage” caused by an “occurrence” which included an “accident”. The court … Continue reading

A settlement offer must be accepted unequivocally without variance (US)

By Patrick Bracher (ZA) on April 1, 2022 Posted in Insurance

A US case has reaffirmed that where a settlement offer is made it must be accepted unequivocally and without variance of any sort otherwise it is not an acceptance but a rejection or counteroffer. A settlement offer and acceptance is a contract formed like any other contract. Settlement agreements must meet the same requirements as … Continue reading

Insuring cyber risks: remember its OT as well as IT

By Patrick Bracher (ZA) on March 7, 2022 Posted in Insurance

The buzz about the Internet of Things of a few years ago has died down but the cyber world and its things are becoming increasingly interconnected. When considering insuring cyber risks, insurers must remember it is not only IT (Information Technology) but also OT (Operational Technology) that needs to be evaluated. Hackers know better than … Continue reading

Insurance contamination exclusion upheld as unambiguous and properly located in policy

By Patrick Bracher (ZA) on March 3, 2022 Posted in Insurance

Faced with an unambiguous lead contamination exclusion, a damages claimant, alleging personal injury to a child from ingesting lead from the paint in a rented property, unsuccessfully contended that the exclusion was unenforceable because it was allegedly hidden 30 pages into the policy. According to the exclusion, the insurance did not apply to injury “arising … Continue reading

“Consequent upon” in policy wording connotes ‘but-for’ causation (US)

By Patrick Bracher (ZA) on February 24, 2022 Posted in Insurance

A Texas court, whose judgment was confirmed on appeal, found that an excluded loss “consequent upon” handing over gold coins to another against a fraudulent cheque invokes a more direct type of causation than “due to” or “arising out of”. A loss sustained “consequent upon” an event connotes ‘but-for’ causation and the consequence must be … Continue reading

Review of a decision by the Life Insurance Ombudsman

By Donald Dinnie on February 23, 2022 Posted in Insurance

In this recent judgment the insurer rejected the life policy claim of the executor of the deceased estate relying on an exclusion in the policy that liability would not arise where death resulted from a condition that pre-existed the existence of the policy if that death occurred before the expiration of twelve months from the date … Continue reading

Forfeiture clauses and claims tainted by fraud

By NRF Digital Team on February 23, 2022 Posted in Insurance

This blog was co-authored by Anika de Kock, Associate and Lara Thom, Candidate Attorney. In the case of Discovery Insure Limited v Masindi, the court had to consider whether a claim “tainted with fraud” lodged by a policyholder had the effect of rendering the whole claim voidable, even the parts not tainted by fraud and … Continue reading