Tag archives: Insurance

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

Insurance contamination exclusion upheld as unambiguous and properly located in policy

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

Faced with an unambiguous lead contamination exclusion, a damages claimant, alleging personal injury to a child from ingesting lead from the paint in a rented property, unsuccessfully contended that the exclusion was unenforceable because it was allegedly hidden 30 pages into the policy. According to the exclusion, the insurance did not apply to injury “arising … Continue reading

The law does not require impossibilities and its effect on prescription

By Patrick Bracher (ZA) on December 17, 2021 Posted in General, Insurance

In finding that the Road Accident Fund Act three year extinctive prescription period (with some exceptions) did not apply to the claimant who had become a person of unsound mind because of the motor accident, the Constitutional Court applied the impossibility principle (lex non cogit ad impossibilia). It was held that the claimant’s action had … Continue reading

A pension fund cannot challenge the Pension Fund Adjudicator’s section 37C decision

By Michelle David on July 20, 2021 Posted in Insurance

A pension fund failed in its application for reconsideration of the Pension Fund Adjudicator’s (PFA) decision to refer the matter back to the fund for reconsideration because, according to the Financial Services Tribunal the fund is not a ‘person aggrieved’ as required by section 230 of the Financial Sector Regulation Act of 2017. The fund … Continue reading

Touting for clients not an insured professional service (US)

By Patrick Bracher (ZA) on May 24, 2021 Posted in Insurance

After the oil rig blowout off the coast of Louisiana in 2010 which led to a litigation frenzy, practising attorneys paid runners millions of dollars to sign up tens of thousands of potential plaintiffs who were unaware of what their information was required for. The lawyers also filed unauthorised presentment forms on behalf of the … Continue reading

Insurance fraud and fraud clauses

By Donald Dinnie on April 23, 2021 Posted in Insurance

The Supreme Court of Appeal in an April 2021 judgment dealt with the interpretation and application of a fraud clause found in the policy.. The clause read: “If you, or anyone acting on your behalf submits a claim, or any information or documentation relating to a claim, that is in any way fraudulent, dishonest or … Continue reading

Covid-19 claim rejected because of virus exception (US)

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

A Kentucky US district court rejected the business interruption insurance claim of a retail business specialising in sale of outdoor sportswear and equipment for losses suffered as a result of government restrictions following the outbreak of Covid-19. The all-risks policy covered physical loss and damage but excluded damage caused directly or indirectly regardless of any … Continue reading

Insurance policies and absolute and relative warranties

By Donald Dinnie on April 14, 2021 Posted in Insurance

In South African insurance law a warranty is usually a condition precedent to inception or continuation of cover or payment of a claim. The consequence of breach or non-fulfilment is that there is no obligation on the insurer to indemnify the insured. Warranties may be absolute or relative. An obligation requiring that a certain state … Continue reading