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Presentation of the risk: non-disclosure and misrepresentation
In Dalecroft Properties Ltd v Underwriters [2017] EWHC 1263 (Comm) the insurers of a building sought to avoid the policy for non-disclosure and misrepresentation. There were also allegations of breach of warranty. The issues were largely factual. Although the case was decided on the law as it was before the passing of the Insurance Act 2015, it was expressly stated by Richard Salter QC, sitting as a Deputy High Court Judge, that the outcome would have been no different under the new regime.
Online Published Date:
14 August 2017
Appeared in issue:
Vol 29 No 8 - 01 August 2017
Insurance in litigation: disclosure of insurance coverage
England has set its face against the disclosure of insurance arrangements in litigation. Re RBS Rights Issue Litigation [2017] EWHC 463 (Ch), a decision of Hildyard J, involved a rejection by the court of an application for disclosure of the insurance arrangements of those funding claimants in a group action, the purpose of the application being to allow the defendants to decide whether or not to apply for security for costs.
Online Published Date:
14 August 2017
Appeared in issue:
Vol 29 No 12 - 01 December 2017
Replacement motor vehicles: recoverability of hiring charges
The measure of
damages available to the victim of a negligent driver for loss of use of his
vehicle pending repairs has been before the courts on numerous occasions in the
past 15 years or so. In the joined cases McBride v UK Insurance Ltd; Clayton v EUI Ltd [2017] EWCA Civ 144 there was a challenge to
the established practice of applying the lowest mainstream local rate for hire
charges, and also extensive discussion of the right of a hirer to secure a
hiring package with no excess for property damage. The lengthy judgment of the
Court of Appeal on these issues was given by Flaux J.
Online Published Date:
14 August 2017
Appeared in issue:
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Reinsurance: excess of loss reinsurance and aggregation
In Simmonds v Gammell [2016] EWHC 2515 (Comm), Sir Jeremy Cooke had to consider an appeal from the finding of an arbitral tribunal that the reinsured’s liability to indemnify the Port of New York against claims by employees following the WTC attacks arose from one event. The case is discussed by David Turner QC of 4 New Square.
Online Published Date:
14 August 2017
Appeared in issue:
Vol 29 No 8 - 01 August 2017
Life and personal injury insurance: accident
In Quek Kwee Kee and Another v American International Assurance Co Ltd and
Another [2017] SGCA 10 the Singapore
Court of Appeal has discussed at length the meaning of the word “accident” in a
personal injury policy. As this was the first occasion on which the issue has
arisen in that jurisdiction, the court undertook its usual thorough analysis,
taking into account the decisions of all relevant common law jurisdictions.
Online Published Date:
14 August 2017
Appeared in issue:
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Reinsurance: back-to-back coverage
It is often said that there is a presumption that a reinsurance contract is to be construed back to back with the underlying reinsurance. The cases have demonstrated a number of important limitations on that principle: it is confined to facultative and proportional reinsurance; it cannot contradict clear wording to the contrary; and it is less likely to operate where coverage issues are at stake.
Online Published Date:
14 August 2017
Appeared in issue:
Vol 29 No 8 - 01 August 2017
Motor insurance: scope of cover and compulsory insurance
The Road Traffic Act
1988 requires vehicle owners to be insured for liability for injury and damage “caused
by, or arising out of, the use of the vehicle on a road or other public place
in Great Britain” (section 145). In UK Insurance Ltd v R&S Pilling (trading as Phoenix Engineering) [2017]
EWCA Civ 259, the Court of Appeal considered whether a motor policy covered
liabilities of a car owner arising from a fire caused by his repairing the car.
Online Published Date:
14 August 2017
Appeared in issue:
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Reinsurance: non-disclosure and misrepresentation
Questions of
inducement can involve complexities that are not always easy to spot. In some
cases one is dealing with the binary question of what difference the material
fact that was not disclosed would have made to the underwriter. But things will
not always be so straightforward. The material fact that has not been disclosed
is ex hypothesi something that would have made the risk less attractive to an
underwriter.
Online Published Date:
14 August 2017
Appeared in issue:
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Uninsured drivers and the Motor Insurers’ Bureau: knowledge of the absence of insurance
Under the Motor Insurers’ Bureau Uninsured Drivers Agreement, the most recent version of which was published in March 2017, the MIB is required to pay compensation to the victims of uninsured drivers found liable to those victims. The most important exception is in respect of a passenger who knew or ought to have known that the driver was uninsured.
Online Published Date:
14 August 2017
Appeared in issue:
Vol 29 No 9 - 01 September 2017
Utmost good faith: damages for failure to pay a claim
The decision of the New South Wales Court of Appeal in
Sharma v Insurance Australia Ltd [2017] NSWCA 55, the court constituting
McColl JA, Meagher JA and Payne JA is one on unusual facts. It is not often
that a property insurer is sued for personal injuries suffered by its assured.
Online Published Date:
14 August 2017
Appeared in issue:
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Professional indemnity insurance: aggregation
In AIG Europe Ltd v OC320301 LLP and Others [2016] Lloyd’s Rep IR 147 Teare J was asked to determine whether a number of different claims against a firm of lawyers could be characterised as arising from similar acts or omissions in a series of related matters or transactions for the purposes of limb (iv) of the aggregation provision within the prevailing Solicitors’ Minimum Terms and Conditions (“MTC”).
Online Published Date:
14 August 2017
Appeared in issue:
Vol 29 No 9 - 01 September 2017
Property insurance: reinstatement of cover
In New Zealand it is common for property policies to contain reinstatement clauses, whereby if a claim is paid by the insurers then the amount of cover is automatically reinstated subject to the payment of an additional premium if required. In Annex Developments Ltd v IAG New Zealand Ltd [2017] NZHC 706, Associate Judge Matthews was required to decide whether reinstatement was triggered by actual payment only, or whether sums that should have been paid but were not paid themselves triggered reinstatement so that the full amount of policy cover remained in place for any future losses.
Online Published Date:
14 August 2017
Appeared in issue:
Vol 29 No 12 - 01 December 2017
Liability insurance: reasonable care and compliance with statutory requirements
Some policies require the assured to comply with statutory or regulatory standards. A recurring question is whether such an obligation is absolute or whether it is subject to reasonable care restrictions. The most recent decision, Manitowoq Platinum Pty Ltd v WFI Insurance Ltd [2017] WADC 32, a decision of Davis DCJ in the Western Australia District Court, has shown a clear preference for a reasonable care interpretation. Earlier cases demanding absolute compliance were distinguished.
Online Published Date:
14 August 2017
Appeared in issue:
Vol 29 No 12 - 01 December 2017