Topic: Insurance

Shooting death excluded from insurance by battery and weapons exception (US)

By Patrick Bracher (ZA) on July 22, 2022 Posted in Insurance

This blog was co-authored by: Anitah Ndhlovu, Candidate Attorney When a man was shot outside a food store, the wife sued the store’s operator and sought the benefits of the store’s insurance liability policy. The claim failed because of two exclusions, namely an assault and battery exclusion and a weapons exclusion. The policy indemnified “those … Continue reading

Intentional loss exception excludes insurance cover for house burned down by daughter (US)

By Patrick Bracher (ZA) on July 22, 2022 Posted in Insurance

This blog was co-authored by: Anitah Ndhlovu, Candidate Attorney The insured, under a homeowner’s insurance policy, lived in a house with their 18 year old daughter, an “insured” under the policy, who ignited her father’s bedspread intending to make him mad. She could not put out the fire which destroyed the house. The claim against … Continue reading

Interpreting insurance policies and the quality of the drafting (Australian judgment)

By Donald Dinnie on July 13, 2022 Posted in Insurance

The quality of the drafting of a policy may be taken into account when construing its terms: “The policy should be construed as a whole … It should not be approached by isolating particular fragments or disregarding its overall character … This also requires consideration of the style, layout, language and structure of the instrument. … Continue reading

Insurance and ESG

By Donald Dinnie on July 11, 2022 Posted in Insurance

Environmental, social and governance issues are playing and will play an increasingly important role in the South African insurance sector which should be proactive in contributing to, influencing and being part of ongoing discussions on integration of ESG principles into risk management, underwriting, capital adequacy processes, investment decision making, underwriting and underwriting disclosures, capital adequacy … Continue reading

D & O Insurance and ESG

By Donald Dinnie on July 6, 2022 Posted in Insurance

The existence or absence of sound corporate governance has always been a factor when underwriting a D & O risk. Sound governance includes sound ESG practices. It is becoming standard for D & O underwriters to undertake an ESG analysis as part of the underwriting process so that underwriters can achieve as much comfort as … Continue reading

All risks claimant is required by law to prove cause of event for insurance claim (US)

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

The claimant was insured under an all-risks insurance policy covering a vessel. The policy did not cover engine damage unless an accidental external event caused the damage. The vessel suffered catastrophic engine failure. The court held that the insured had to come forward with evidence that an external event caused the engine damage and the … Continue reading

Double insurance (Australia)

By Donald Dinnie on June 30, 2022 Posted in Insurance

In this April 2022 judgement, the court reviewed and considered the doctrine of double insurance in the context of a motor vehicle accident claim where the third party insurer settled the claim and then sought a contribution from the insurer of the employer of the driver. And the effect in that context on double insurance of … Continue reading

Negligent conduct does not automatically attract liability

By Deniro Pillay (ZA) and Purnel Gangiah on June 28, 2022 Posted in Insurance

Where a claimant sues for damages for a personal injury claim, the proof of negligence does not automatically attract liability on the part of the third party for the claim. The claimant is required to prove that the third party’s negligent act or omission caused the harm or loss suffered by the claimant. This was … Continue reading

Broker’s liability to clients (Australia)

By Donald Dinnie and Keaoleboga Molefe on June 28, 2022 Posted in Insurance

This is an Australian case which concerns legal duties that a broker owes to its client (the insured) and the burden of proof that lies with the insured in showing whether brokers breached their legal duty. The broker provided the client with insurance brokerage services for over 30 years. The broker had obtained all-inclusive building … Continue reading

D & O Insurance, Derivative claims and ESG (UK)

By Donald Dinnie on June 23, 2022 Posted in Insurance

In this High Court of Justice judgment, the court declined to permit two members of the pension scheme to bring a derivative claim against the Universities Superannuation Scheme and the directors of its corporate trustee. Derivative claims are made when those with interest in the company, usually shareholders, bring a lawsuit against directors for alleged … Continue reading

Contractual liability exclusions in insurance policies (Canada)

By Donald Dinnie on June 21, 2022 Posted in Insurance

In this Canadian judgment, the court dealt with a professional errors and omissions policy which excluded contractual liability claims unless the insured would have had that liability in the absence of the contract. The relevant exclusion read: “This Policy does not apply to any Claim … arising from the Insured’s: assumption of liability in a … Continue reading

Breach of claims co-operation obligation and rejection and cancellation of a policy

By Donald Dinnie on June 20, 2022 Posted in Insurance

This recent rather cryptic judgment confirms that in appropriate circumstances, an insurer may both reject the relevant insurance claim and cancel the policy by reason of the breach of the insured’s claim co-operation obligations under the policy. The judgment is thin on particularity and does not identify the particular claims co-operation clause, its wording nor … Continue reading

Claim is not made during claims-made policy period until formally made

By Patrick Bracher (ZA) on June 6, 2022 Posted in Insurance

When a manufacture’s product caused harm to an infant, the manufacture failed in its claims against its insurer under a claims–made policy because passing on news articles about the event to the insurer did not constitute a “claim” under the policy. A two-year-old infant swallowed small magnets known as “Buckyballs” which shredded his internal organs … Continue reading

Storm insurance and landslip

By Donald Dinnie on June 2, 2022 Posted in Insurance

In this 1976 judgment the policy covered damage caused by a storm. The policy excluded damage caused by subsidence or landslip. The retaining wall on a mountain slope collapsed after a heavy rainfall damaging property in the lower premises. One wall was poorly designed and had an inadequate footing and insufficient weepholes to drain off water … Continue reading

Legal liability of a shop owner in a ‘slip and trip’ incident

By Purnel Gangiah on May 30, 2022 Posted in Insurance

In any ‘slip and trip’ incident, a court will apply the negligence test namely that a person is liable for foreseeable harm caused to another that could have been avoided by the exercise of reasonable care. The plaintiff sued the defendant retail store for damages that she sustained as a result of slipping and falling … Continue reading

A new intervening cause absolves electrical contractor from liability for injury

By Donald Dinnie and Rethabile Shabalala on May 30, 2022 Posted in Insurance

The plaintiff and her minor child resided in a sectional title complex. On 10 September 2015, while helping his mother wash her car, the plaintiff’s son was electrocuted whilst trying to open a tap outside a unit. The occupier of that unit had requested improvements to be done to her kitchen wherein several contractors were … Continue reading

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