Topic: Insurance

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

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)

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  The Australian Quarantine Act had been replaced by the Bio Security Act, 2015 before the policy came into force but was held to be a replacement statute.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

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

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

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

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

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

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

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)

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

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

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

Slips, trips and independent contractors

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

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

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

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

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

A Bit More about Follow-the-Lead Clauses

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

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

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