Topic: Insurance

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Meaning of “accident” in Zambian insurance law 

In this Zambian judgment of Mattaniah Investments Limited and Zambia State Insurance Corporation Limited,  the Zambian High Court considered the meaning of “accident” in a policy which indemnified the insured for loss of broiler chickens due to “accident, disease and illness”. The court accepted that an “accident” is simply something unusual, unforeseen or an unexpected … Continue reading

Meaning of “whatsoever nature” and “howsoever arising”

In this particular judgment, discussed here the Supreme Court of Appeal held that the phrases “of whatsoever nature” and “howsoever arising” as used in the disclaimer clauses in the contract under consideration should be given their ordinary literal meaning. This is consistent with earlier judgments. Those clauses are sufficiently wide in their ordinary import to … Continue reading

The disclaimer clause lives!

In this judgment, the Supreme Court of Appeal upheld the defendant’s reliance on the disclaimer of liability provisions in its warehousing and distribution contract with the plaintiff. After reviewing relevant judgments on disclaimer clauses and principles, the judgment once again confirms that in appropriate factual circumstances and disclaimer wording, South African courts will uphold reliance … Continue reading

Rule 41A and Bad Faith Mediation – Part 3

A number of decisions in the United States courts confirm that there is such a thing as bad faith mediation.  Those are considered in this high court judgment. While those judgments are instructive, it is necessary to recognise the distinction between voluntary and coercive mediation. High Court Rule 41A is constructed on the premise of … Continue reading

Requirements for principal’s liability for conduct of third party service provider

This blog was co-authored by: Tristan Marot, associate designate In the high court judgment Legal Expenses Insurance Southern Africa Limited t/a Legalwise v Melamu, the high court confirmed that as a “general rule an employer is not liable for the wrongdoing of an independent contractor unless the employer was personally at fault.” The plaintiff sued a … Continue reading

Rule 41A and Bad Faith Mediation – Part 2

Superimposed over ordinary voluntary mediation, where a party can withdraw at any stage without potentially attracting any adverse consequences, is the judicially sanctioned High Court Rule 41A procedure obliging the parties to consider a non-adversarial resolution to a dispute which is already before the courts. The provisions of rule 41A are consistent with the understood … Continue reading

Rule 41A and Bad Faith Mediation –  Part 1

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)

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)

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

The law does not require impossibilities and its effect on prescription

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

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

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

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