Topic: Insurance

Avoidance of insurance policy for non-disclosure and misrepresentation (UK)

By Donald Dinnie on November 19, 2021 Posted in Insurance

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

By Donald Dinnie on November 18, 2021 Posted in Insurance

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

Professional Indemnity Insurance and aggregation of claims (UK)

By Donald Dinnie on November 12, 2021 Posted in Insurance

This UK court of appeal judgment Lord Bishop of Leeds v Dixon Coles & Gill [2021] EWCA Civ 1211 considered whether claims arising from one series of related acts or omissions could be aggregated. The insured, an attorney’s practice, held a professional indemnity policy with a limit of indemnity for one claim of £2 million. The … Continue reading

Wrongfulness and liability for injury by animals

By Donald Dinnie on November 10, 2021 Posted in Insurance

This blog was co-authored by: Bwanika Lwanga, Candidate Attorney In this January 2021 judgment the high court in Minister of Justice and Correctional Services v Kitcher and Another (874/2019) [2021] ZANCHC 12 considered the question of whether the minister could be held liable for harm from an animal attack on premises within their control. Mr … Continue reading

Householders liability insurance exclusion for anyone who usually lives at the insured address (Australia)

By Donald Dinnie on November 9, 2021 Posted in Insurance

This judgment Re Murray (deceased) Crummer v AAI Limited ABN 2020 QSC 155 dealt with the meaning of a householder’s liability policy exclusion for liability for death or injury of anyone who usually lives at the insured address. The court said that the phrase “anyone who usually lives at the insured address” appeared to be a … Continue reading

When constitutional damages are claimable

By Donald Dinnie on November 9, 2021 Posted in Insurance

This November 2021 Constitutional Court judgment contains a useful review and analysis of when it is appropriate to award constitutional damages. In terms of section 38 of the Constitution, a court may award damages for a violation of rights in the Bill of Rights. Section 38 refers to the granting of “appropriate relief”. The concept of … Continue reading

Conversion of non-life licence results in lapse of accident and health policies

By Patrick Bracher (ZA) on November 4, 2021 Posted in Insurance

Prior to conversion of its short-term licence to a non-life licence under the Insurance Act, 2017, the insurer underwrote accident and health policies with what are now both life and non-life risk components. Under the Insurance Act non-life insurers are only permitted to conduct accident and health policies insuring costs or loss of income (not … Continue reading

Business interruption non-damage extension insurance indemnity periods

By Donald Dinnie on November 3, 2021 Posted in Insurance

In this judgment, the court held that the indemnity period applicable to the relevant non-damage business interruption extension of the policy was eighteen months and not three months as contended for by the insurer. The judgment is fact specific and turns on the policy wording and structure. It establishes no new principles. The court applied … Continue reading

US jury rejects restaurant Covid-19 insurance claim

By Donald Dinnie on October 29, 2021 Posted in Insurance

Readers who have been following the Covid-19 business interruption litigation in the USA will know that the courts have largely, at summary judgment stage, dismissed claims for coverage alleging that the virus caused physical damage to insured premises. That question has been now been pronounced upon by a jury trial. A Missouri Federal jury considered … Continue reading

Silent cyber and ransomeware cover (US)

By Patrick Bracher (ZA) on October 29, 2021 Posted in Insurance

The insured was locked out of its computer systems with the hard drives encrypted as a result of a ransomeware attack. It ultimately paid the requested ransom with four bitcoins valued at nearly $35 000 before it regained access to its computer systems. The court held that, if fraud was established, the insurers would have to … Continue reading

Disclaimer of liability clauses

By Donald Dinnie on October 28, 2021 Posted in Insurance

A contract of carriage had been concluded by way of an exchange of e-mails. After conclusion of the contract, the customer had signed a credit application with standard trading conditions which contained an exemption from liability for loss or damage. The appeal court found that the credit application with the exemption clauses did not form … Continue reading

Motor collision claimants can recover diminished value of repaired vehicles

By Patrick Bracher (ZA) on October 22, 2021 Posted in Insurance

The Massachusetts highest court found that an insurer is obliged to compensate the claimants not only for repairs to their vehicles to restore them to pre-collision condition but also for what is known as inherent diminished value (IDV). IDV damages are included as part of the amounts to which a claimant is legally entitled to … Continue reading

Indemnity Insurance involves payment for loss actually suffered by insured (Australian court)

By Donald Dinnie on October 20, 2021 Posted in Insurance

In the judgment, Swiss Re International Se v LCA Marrickville (Pty) Limited, the court discussed the principle that an insured must, under a contract of indemnity, prove the extent or the amount of the loss claimed because the indemnity only concerns actual loss and the deductions to be made from the losses. The court confirmed … Continue reading

Tribunal upholds Prudential Authority penalty for unrecorded loan & dividends directive

By Patrick Bracher (ZA) on October 15, 2021 Posted in Insurance

An October 2021 decision of the Financial Services Tribunal upholding an administrative order, a directive, and a penalty by the Prudential Authority is worth noting. The Tribunal held there was no basis for successfully challenging the penalty for an intergroup loan arrangement not recorded in writing and for unjustified dividends paid. A small licensed life … Continue reading

Interpretation of Business Interruption insurance and Covid-19 USA style

By Donald Dinnie on October 15, 2021 Posted in Insurance

In a September 2021 appeal judgment in Ohio USA, the court held that the State’s order to suspend all in-person dining operations at restaurants to slow the spread of the virus resulting in considerable loss of revenue for the insured was not a loss covered under the insured’s business interruption policy “caused by direct physical … Continue reading

Liability of boom operator for personal injury

By Donald Dinnie on October 14, 2021 Posted in Insurance

Some of our readers, like the author, will have experienced a near-miss from a descending boom at a carpark entrance. In an October 2021 judgment, the plaintiff successfully claimed for personal injuries sustained when the boom at the carpark operated by the defendant descended and struck her. The plaintiff alleged that her injuries were caused … Continue reading

Covid-19 business interruption Australian judgment mostly favours insurers

By Donald Dinnie on October 13, 2021 Posted in Insurance

In this, second, Australian test case for business interruption claims relating to Covid-19 the court said that “[A] policy of insurance is assumed to be an agreement which the parties intend to produce a … businesslike interpretation … …a construction that avoids capricious, unreasonable, inconvenient or unjust consequences, is to be preferred where the words … Continue reading

Cyber risks again

By Patrick Bracher (ZA) on October 11, 2021 Posted in Insurance

We have been mentioning for some time the pandemic-like risks associated with cyber events. According to a recent Airmic survey cyber rates have risen by as much as 400% for some insureds. Cyber risks are therefore said to be the most likely new risks to be financed by captives. If a systemic cyber event should … Continue reading

When can an insured institute action to recover its excess from a third party wrongdoer?

By NRF Digital Team on October 5, 2021 Posted in Insurance

This blog was co-authored by: Anika de Kock, associate and Zinhle Mdluli, candidate attorney The doctrine of subrogation literally means the substitution of one party for another as creditor. The doctrine is an incidence of the law of indemnity. The Court would allow the insurer to do so “in the name of the insured whether … Continue reading

Prescription of business interruption insurance claims (UK)

By Donald Dinnie on October 1, 2021 Posted in Insurance

Prescription arose in a UK case dealing with a business interruption claim arising from damage to the insured’s gym facilities when the premises were broken into and vandalised. Damage was caused to the toilets and wash hand basin and there was flooding of the premises. Exercise bikes, furniture, mirrors and other equipment were damaged and … Continue reading

Unconditional performance guarantees are unconditional

By Patrick Bracher (ZA) on September 29, 2021 Posted in Insurance

The Supreme Court of Appeal has again emphasised that a performance guarantee in terms of which the guarantor undertakes to pay an amount if the contractor fails to perform the required work is unconditional. The beneficiary of the guarantee is not obliged to prove an entitlement under the principal contract before it can make a … Continue reading

‘Strategic response costs’ v ‘ex gratia’

By Patrick Bracher (ZA) on September 28, 2021 Posted in Insurance

A recent US case referred to an interim payment to injured third parties as ‘strategic response costs’ covered under the policy. That is a neat phrase to use instead of an ex gratia payment. ‘Ex gratia’ is always controversial because it implies a payment without a lawful obligation. Ex gratia payments are often made for … Continue reading

Litigation funding is not insurance

By Donald Dinnie on September 20, 2021 Posted in Insurance

In the High Court Steinhoff judgment, it was argued that the litigation funding agreement between the class representative and the funder was a contract of insurance in terms of which the funder provides indemnity insurance to the class representative in consideration for the funder being paid a premium, being a percentage of the ultimate reward. … Continue reading

Insured loss to value of damaged and repaired vehicles

By Patrick Bracher (ZA) on September 14, 2021 Posted in Insurance

In the US state of Georgia, the formula applied with court backing since 2001 for determining how much a car’s value diminishes after a wreck and repair is “the difference between pre-loss value and post-repair value”. Attorneys for two plaintiffs brought a class action alleging that the insurer was underestimating the value of repaired cars … Continue reading