Topic: Insurance

Insurance, rejection, Time Bar clauses and rejection of insurance claims (Botswana)

By Donald Dinnie on October 17, 2022 Posted in Insurance, Uncategorized

In Majwe Mining Joint Venture (Pty) Ltd v Old Mutual Short-Term Insurance (Botswana) Limited, the Botswana appeal court was required to consider the date from which the time bar period provided for in the General Conditions in an insurance policy started running following the insurer’s disclaiming of liability for an indemnity. In a communication of … Continue reading

What is ‘replacement’ of a statute? (Aus)

By Patrick Bracher (ZA) on October 11, 2022 Posted in Insurance

The interpretation clause in a policy of insurance included a provision that “references to a statute law also includes all its amendments or replacements”. The Australian Quarantine Act had been replaced by the Bio Security Act, 2015 before the policy came into force but was held to be a replacement statute. The court held that … Continue reading

Property Insurance: calculation of total loss

By Donald Dinnie on October 10, 2022 Posted in Insurance

In the High Court case of Blackspear Holdings (Pty) Ltd v SASRIA the debate revolved around the proper interpretation of the total loss clause: “‘2. Total loss In the event that the insured property is totally lost or destroyed the amount payable shall be the cost of removing the damaged property (limited to the … Continue reading

Data is not tangible property for the purposes of a property insurance policy (US)

By Patrick Bracher (ZA) on October 10, 2022 Posted in Insurance

The claim arose from efforts to recover gold from the wreck of the SS Islander which sank off the coast of Alaska in 1901 carrying gold valued at the time at $6 million. One party to a joint venture recovery company withheld computer data, photographs, videos, imaging, readings, logs and journals downloaded on a media … Continue reading

Downing of Flight 17 by Russian-backed separatists was ‘insurrection’ under war exclusion (US)

By Patrick Bracher (ZA) on October 5, 2022 Posted in Insurance

The family of a student, who died in 2014 when the Donetsk People’s Republic, a Russian-backed separatist group in eastern Ukraine, shot down Malaysia Airline’s Flight 17, sued Western Union for damages for “providing ongoing and essential financial support to the DPR by facilitating money transfers”. The court held that Western Union could not recover … Continue reading

UK Conduct Authority backlog causing serious frustration

By Patrick Bracher (ZA) on October 4, 2022 Posted in Insurance

South African readers will be interested to hear that, according to a recent article in Insurance Day,severe delays at the UK Financial Conduct Authority in approving senior hires are causing strife and harming competitiveness. System errors are allegedly also leading to threats of fines that are unwarranted and later withdrawn. Part of the problem is … Continue reading

Cover ‘afforded’ by umbrella policy means cover ‘provided’ (US)

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

The insured sought cover under a catastrophe umbrella policy when a claim under the underlying policies had been dismissed for late notice. The umbrella policy covered “any claim alleging bodily injury, personal injury or property damage, insurance for which is not afforded by the underlying policies”. The court held that the word “afforded” in the … Continue reading

Mould damage from burst pipe not caused ‘solely’ by mould (US)

By Patrick Bracher (ZA) on September 30, 2022 Posted in Insurance

A burst boiler pipe at a hotel resulted in mould damage to the property. An exclusion stated “damage caused solely by mould is not covered under this policy”. The court found that the language “caused solely by” indicates a distinction between mould as a loss and mould as a cause of the loss. The triggering … Continue reading

Liability excluded for motor vehicle used as tool of trade (Aus)

By Patrick Bracher (ZA) on September 26, 2022 Posted in Insurance

An Australian Supreme Court dismissed a claim for a contribution by one insurer against another because the earthmoving plant loader that was involved in the accident was being operated at the time as a mechanical tool of trade. A tool of trade was defined to mean “the operation of your motor vehicle whilst engaged in … Continue reading

Motor policy indemnity refused for kidnap and assault by insured using insured vehicle (US)

By Patrick Bracher (ZA) on September 21, 2022 Posted in Insurance

A Montana Supreme Court rejected an extraordinary claim by the insured who had kidnapped, physically assaulted, threatened, restrained and injured his estranged wife using the insured vehicle in the course of the kidnap. The court had no difficulty in finding that the insured’s conduct was not accidental for the purposes of the policy and that … Continue reading

What circumstances must be disclosed by a director negotiating a contract? (Aus)

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

The insured company represented by its sole director and shareholder agreed to construct a residential aged care building on the property. The company failed to disclose at a material time that the company was in severe financial distress and unable to meet its obligations including tax obligations. The Australian Federal Court held that the failure … Continue reading

What are ‘circumstances’ known to a director under a D&O Policy (Aus)

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

Where a Directors and Officers Policy provided that the insurer was not liable in connection with any claim based on “any circumstance which was known about by any of the Directors or Officers or Company prior to the Period of Insurance”, it was held that the word “circumstance” meant a circumstance which was known by … Continue reading

Keeping a company’s contract alive creates a ‘personal advantage’ for a director under D&O Policy exclusion (Aus)

By Patrick Bracher (ZA) on September 12, 2022 Posted in Insurance

An Australian federal court held that where a director failed to disclose the financial distress of his company to the prejudice of the other contracting party under a constructions contract, the director “gained personal profit or advantage” for the purposes of an exclusion of the Directors and Officers Policy and no claim was payable by … Continue reading

Email to unattended mailbox is a ‘claim made’ under insurance policy (Aus)

By Patrick Bracher (ZA) on September 9, 2022 Posted in Insurance

An Australian federal court held that an email intimating a claim against the insured under a Directors and Officers Liability Policy to a mailbox that was not attended to was nonetheless “received” by the insured for the purposes of the policy. The claims made policy defined a ‘Claim’ as a “written notice received by a … Continue reading

Claim rejected for misrepresentation and fraudulent claim (Aus)

By Patrick Bracher (ZA) on September 5, 2022 Posted in Insurance

A claim for damage to a concrete pump fitted to a truck was denied by an Australian Supreme Court on the grounds of misrepresentation and nondisclosure regarding the pre-insurance unit’s history and a fraudulent claim in which pre-existing damage was denied. The insured had owned the unit for some time but had not insured it … Continue reading

Slips, trips and independent contractors

By Donald Dinnie on September 2, 2022 Posted in Insurance

This blog was co-authored by: Carly Lakin, Candidate Attorney In this judgment the court considered whether the principal was liable for the negligence of an independent contractor. An attorney at the Gqeberha Magistrates’ Court slipped on a wet floor and sustained injuries. He instituted action against the Minister of Public Works & Infrastructure as the … Continue reading

Insurance: occurrence and aggregation clauses

By Donald Dinnie on August 29, 2022 Posted in Insurance

Occurrence clauses are commonly used to effect the application of deductibles on limits by aggregating claims. They may operate in favour of the insured as to the amount of the deductible because it avoids deductibles being separately applied for each separate claim. And may operate in favour of the insurer in regard to limits because … Continue reading

Insurance professional services exclusion applies to a sleep study company (US)

By Patrick Bracher (ZA) on August 29, 2022 Posted in Insurance

A Georgia US court found that the insurer did not have to defend a sleep study company from a negligent suit by the family of a deceased patient because a professional services exclusion applied to the claims in the underlying action. The company conducted sleep studies for its patients and sought an indemnity from the … Continue reading

Insurers not liable for shareholder claim for listeria outbreak (US)

By Patrick Bracher (ZA) on August 29, 2022 Posted in Insurance

A creamery was sued by shareholders who allege that the company’s share price declined because the executives breached their fiduciary duty by continuing to allow the company to produce and distribute ice cream when knowing that some products tested positive for listeria. The policy did not cover a shareholder lawsuit claiming financial harm but only … Continue reading

More about peremption

By Donald Dinnie on August 22, 2022 Posted in Insurance

The doctrine of peremption requires a party which has lost a case to make up its mind. It cannot equivocate and acquiesce in a judgment or arbitration award and later seek to appeal. In South African law, if the conduct of an unsuccessful litigant is such as to point indubitably and necessarily to the conclusion … Continue reading

Cybercrime held to be a social engineering loss not computer fraud under policy

By Patrick Bracher (ZA) on August 19, 2022 Posted in Insurance

Cybercrime held to be a social engineering loss not computer fraud under policy The insured was defrauded when a bad actor tricked the company CEO into wiring nearly $600 000 into the bad actor’s bank account. It was held that the loss was covered under the social-engineering-fraud cover with a limit of $100 000 and not the … Continue reading

A Bit More about Follow-the-Lead Clauses

By Donald Dinnie on August 19, 2022 Posted in Insurance

In this judgment, the South African appellate court, in referencing co-insurance clauses (which was in content a follow-the-lead clause), said: “In order to determine the proper meaning of the co-insurance clause, it is necessary to have regard to its purpose. In my view, the object of this clause was to protect the insured so that it … Continue reading

A Bit about Follow-the-Lead clauses

By Donald Dinnie on August 18, 2022 Posted in Insurance

In the San Evans Maritime case, the English court described follow-the-lead clauses as follows: “11. Follow clauses come in different forms. Some oblige the following underwriter to follow the lead underwriter in relation to a large number of matters including alterations to the terms of the policy, surveys and settlement of claims (as in Roar Marine … Continue reading

Insurtech, confidential information and passing off

By Donald Dinnie on August 16, 2022 Posted in Insurance

In this mammoth English judgment the court dealt with a dispute between two motor insurance providers and claims of misuse of confidential information used to jointly develop an insurance rating model for the broker’s new start-up insurance business. The claimant insurer sought both an interdict and damages against its former broker and the insurer to … Continue reading