Tag archives: Non-disclosure

Fraudulent misrepresentation defeats voetstoots clause in sale

Where a seller had fraudulently failed to disclose a defective roof and sewerage system covered by buildings constructed without required statutory approval he was successfully sued in delict for fraudulent misrepresentation and fraudulent nondisclosure. Because the conduct was fraudulent the delictual claim defeated the voetstoots clause in the deed of sale as well as the … Continue reading

Duty of disclosure: is the refusal to renew residential policy material to a commercial policy?

Higherdelta Ltd was the owner of commercial properties including a restaurant in Scotland. Its company secretary, director and shareholder was also the owner of a portfolio of residential properties. The non-disclosure of prior events relating to the personal portfolio was held not to be relevant to underwriting the business policy. The restaurant was added to … Continue reading

D&O policy voided for non-disclosure

In the USA a directors and officers policy issued to a man who later pleaded guilty to selling $1.9 million in phony stock was voided for non-disclosure. The policy taken out and renewed included a policy application where the director stated he was unaware of any acts, errors or omissions that may be grounds for future … Continue reading

Misrepresentation of past losses avoids policy

A US court has allowed an insurer to avoid a $25 million policy it issued to H.J. Heinz Co. because of a material misrepresentation regarding its product recall history. In response to a question whether the company had experienced any product recalls or withdrawals within the previous ten years, the insured failed to disclose a destruction … Continue reading

Non-disclosure, misrepresentation and waiver of the insurer’s right to avoid the policy

In an English court judgment in Brit UW Limited v F&B Trenchless Solutions Limited the insurer successfully sought a declaration that avoided a contractor’s combined liability policy. The policy had been issued to the insured as a specialist tunnelling contractor. A derailment of a train occurred at a site where the insured had recently constructed a … Continue reading

Vorsprung drafting technik: preserving the no-claim bonus and disclosure

An appeal bench decision sets the cat amongst the pigeons in the realm of material non-disclosure. The well-known judgment in Jerrier v OUTsurance dealt with whether OUTsurance was entitled to reject Jerrier’s claim for accidental damage to his insured Audi R8 sports car. The reason for the rejection was non-disclosure of two previous motor incidents for … Continue reading

The disclosure test is in the insurance act

Section 59 of the Long-term Insurance Act and section 53 of the Short-term Insurance Act deal with misrepresentation and non-disclosure. The supreme court of appeal’s judgment in Visser v 1 Life Direct Insurance Limited correctly founded the entitlement of an insurer to reject a claim on statute. The insurance acts say that a policy cannot … Continue reading

Obligation to make full and proper disclosure reaffirmed and an interesting, but misguided estoppel argument rejected

In Regent Insurance v King’s Property Development the appeal court confirmed that when dealing with avoidance of a policy for material non-disclosure: The test for materiality is objective taken from the view of the reasonable person in the insurer’s position. The test for inducement is subjective taken from the view of the particular insurer. The … Continue reading
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