Tag archives: Insurance

A previous group insurance scheme became unlawful and the contracts unenforceable when Insurance Act 2017 commenced

By Patrick Bracher (ZA) on September 26, 2023 Posted in Insurance

In September 2023 the Supreme Court of Appeal held that, where 8 000 individual funeral policy members had formed part of a group scheme under the Long-term Insurance Act 1998 which was no longer a “group” scheme as defined in the Insurance Act 2017 from 01 July 2018, the insurance policies and the related intermediary … Continue reading

Policy interpretation: flood endorsement (Botswana)

By Donald Dinnie on September 22, 2023 Posted in Insurance

This 2012 judgment in which Norton Rose Fulbright successfully acted for the insurer, is worth revisiting in the context of the unprecedented levels of flooding being experienced in South Africa (and around the world). The insured had been engaged by the Government of Botswana to construct a dam and was required to design and construct … Continue reading

Medmal claim unsuccessful for failure to notify request for medical records (US)

By Patrick Bracher (ZA) on September 20, 2023 Posted in Healthcare, Insurance

A Maryland US court declined a doctor’s request for an indemnity from his medical malpractice insurers because the insured doctor failed to report a request for medical records from the patient’s lawyer as required by the policy during the policy period. The attorney’s request for medical records was sent on 20 April 2021. The insurance policy … Continue reading

Other insurance clauses lead to pro rata sharing no matter how elaborate (US)

By Patrick Bracher (ZA) on September 19, 2023 Posted in Insurance

It is a universal principle of insurance that where two policies covering the same loss purport to cancel each other out and only cover losses in excess of what other insurers cover, liability will be shared on a pro rata basis, usually equally. In a Georgia US decision regarding coverage for the same losses under … Continue reading

Subrogation – The circumstances and remedies for an insurer’s compromised rights

By Bongubuhle Sibanda on September 15, 2023 Posted in Insurance

An indemnity policy constitutes a contractual agreement in terms of which the insurer indemnifies the insured in the event of a loss. The policy is neither intended to unjustifiably enrich nor undercompensate the insured. Its primary purpose is to restore the insured to their prior financial position subject to indemnity limits and avoid double indemnity. … Continue reading

Insurance claims rejection for failure of insured to submit to examination under oath (US)

By Patrick Bracher (ZA) on September 14, 2023 Posted in Insurance

A Massachusetts appeal court refused to uphold an insurer’s fire claim rejection that was based on an alleged failure of the insured to submit to a “reasonably required” examination under oath in the course of investigating the claim because, on the facts, the insured had not wilfully and without excuse refused to present its president … Continue reading

Building regulation exclusions in a liability policy (Aus)

By Donald Dinnie on September 7, 2023 Posted in Insurance

In this Australian judgment previously dealt with here the court had to consider whether the insured’s claim to be indemnified for its liability for a slip and trip claim was excluded by reason of the building and local authority regulation exclusions which read: “We do not cover We will not pay for any loss, damage … Continue reading

Arising from, in connection with, directly or indirectly, arising directly or indirectly from or in any way connected with: insurance (Aus)

By Donald Dinnie on September 6, 2023 Posted in Insurance

This Australian judgment considered whether the insurer could correctly rely on a number of exclusions to a claim by its insured for cover under the liability section of the policy. The policy used two composite formulations to connote the requisite relationship between the liability and the exclusion. The first formulation excluded liability “arising from, or … Continue reading

Director must refund defence costs to D&O insurer despite alleged partial success (US)

By Patrick Bracher (ZA) on August 22, 2023 Posted in Insurance

A Delaware bankruptcy judge held that a D&O insurer can clawback more than $6 million in advancements of costs to the director’s criminal defence lawyers even if some charges against the director were dropped for practical reasons, not because of the director’s innocence. The case stems from the notorious conduct of the CEO of Insys Therapeutics … Continue reading

Insurer entitled to provide security for disputed storage costs to get vehicle released

By Patrick Bracher (ZA) on July 27, 2023 Posted in Insurance

The High Court has permitted a motor insurer to put up security for the disputed balance of motor vehicle storage costs in order to enable the insurer to get release of the vehicle and to stop storage charges being incurred. The insurer paid out the insured for the full value of the seriously damaged vehicle … Continue reading

Contract works exclusion not limited to works owned by or in possession of insured (AUS)

By Patrick Bracher (ZA) on July 6, 2023 Posted in Insurance

A July 2023 judgment by the Federal Court of Australia held that by reason of the definition of “Contract Works” in the Contractors Liability Policy, the contract works exclusion was not limited to those parts of the works owned by or in the possession of the insured because the natural and ordinary reading of the … Continue reading

Insurance and aggregation clauses (UK)

By Donald Dinnie on July 5, 2023 Posted in Insurance

There is a substantial body of English case law explaining the import of a contrast between different aggregation clauses. AXA Reinsurance (UK) PLC v Field (1996) 1 WLR 1026 at 1035 contrasted the words “arising from one originating cause” with the words “arising out of one event” used to define the unifying factor used in … Continue reading

Problems with ‘other insurance’ clauses

By Patrick Bracher (ZA) on July 3, 2023 Posted in Insurance

In a US decision as to which of two insurers was the primary insurer with a duty to defend the policyholder, the ‘other insurance’ clauses in each policy were different. The ‘other insurance’ provision in the Secura policy provide that “if other valid and collectable insurance is available to the insured for a loss” coverages … Continue reading

Covid-19 Insurance and Damage (UK)

By Donald Dinnie and Patrick Bracher (ZA) on July 3, 2023 Posted in Insurance

In this judgment the insured restaurant argued that the requirement in the murder, suicide or disease extension that the interruption or interference with the insured business be caused by damage did not require physical damage. It was common cause that there had been no physical loss or damage to the insured premises or property used … Continue reading

Covid-19 insurance, “at the premises” and causation (UK)

By Donald Dinnie on June 27, 2023 Posted in Insurance

In this high court judgment the court considered whether “at the premises” disease cover entailed the same approach to proximate causation as the disease cover considered by the Supreme Court in Financial Conduct Authority v Arch Insurance (UK) Limited [2021] UK SC 1. The relevant wording of the policy in the lead action read: “The … Continue reading

Breach of an insurance policy may lead to damages not cancellation

By Patrick Bracher (ZA) on June 22, 2023 Posted in Insurance

Depending on the wording of an insurance policy, a breach by the insured will not necessarily entitle the insurer to cancel the policy without a specific right to do so. According to the wording or, if not explicitly dealt with, the materiality of the breach, the insurer may only have a damages claim for loss … Continue reading

New emerging risk insights

By Patrick Bracher (ZA) on June 21, 2023 Posted in Insurance

Swiss Re has published their latest SONAR (Systematic Observation of Notions Associated with Risk). Many of the risks mentioned are specific to the northern hemisphere but some of them will be of interest locally in South Africa.… Continue reading

A forklift is a motor vehicle as defined in the Road Accident Fund Act

By Patrick Bracher (ZA) on June 21, 2023 Posted in Insurance

The Supreme Court of Appeal held in June 2023 that a forklift is not a motor vehicle as defined in the Road Accident Fund Act of 1996 which defines a ‘motor vehicle’ as “any vehicle designed or adopted for propulsion or haulage on a road by means of fuel, gas or electricity …”. The three … Continue reading

Insureds, the duty to act in good faith and fraud clauses (Part 2)

By Donald Dinnie on June 19, 2023 Posted in Insurance

The questions on appeal in this Supreme Court of Appeal judgment were whether the policy fraud clauses entitled the insurer to repayment of all the amounts paid to the insured subsequent to the insured event when the insured with full knowledge of his misrepresentations submitted a partly fraudulent claim; whether the doctrine of accrued rights … Continue reading

A reminder on how to accurately determine quantum in motor vehicle collisions.

By Shrivar Chendip on June 14, 2023 Posted in Insurance

This blog was co-authored with Jason Hudson, Candidate Attorney. In February 2023, the Northwest High Court revisited the methods for determining damages suffered to a motor vehicle. The plaintiff claimed a total of R185 056 in damages for collision damage to a motor vehicle. Despite a judgment on merits being granted in favour of the … Continue reading

A non-life insurer can insure its first-party risks

By Patrick Bracher (ZA) and Tristan Marot on June 13, 2023 Posted in Insurance

A March 2023 decision of the Financial Services Tribunal found that there is no implied prohibition in the Insurance Act on ‘traditional’ insurers (not cell) underwriting risks for both its own first party risks and third party risks. Abacus Insurance Limited (“Abacus”), a traditional insurer, holds a non-life insurance licence, permitting it to underwrite third … Continue reading

Insurable interest and unascertained bulk goods in storage or transit(UK)

By Donald Dinnie on June 6, 2023 Posted in Insurance

In this April 2023 judgment the UK Court of Appeal found that an insured may have an insurable interest in cargos of grain in circumstances where they do not form an identified part of the bulk grain stored or shipped. In a dispute that dealt with a claim under a Marine Cargo Open Policy, the … Continue reading

Homeowners policy excludes claim for excessive rainfall damage (US)

By Patrick Bracher (ZA) on May 29, 2023 Posted in Finance

In May 2023 a Michigan US court held that an exclusion in a homeowners policy covering physical loss caused by water or waterborne material which backed through sewers or drains but excluded cover for “the inability of the sewer or drain to handle the amount of rainwater, surface water or groundwater trying to enter the … Continue reading

Insurance and meaning of “sudden, unintended and unexpected happening”

By Donald Dinnie on December 5, 2022 Posted in Insurance

In this recent High Court judgment, the insurance policy under consideration contained a pollution exclusion with the proviso that the exclusion did not apply where the pollution was caused by a “sudden, unintended and unexpected happening” during the period of the insurance. It was common cause that the contamination of the third party’s land was … Continue reading