Insurance Law Monthly

Most policies incept at midnight and terminate at midnight the following year. Some policies specify a particular hour of the day for inception and termination. Body Corporate 74246 v QBE Insurance (International) Ltd [2017] NZHC 1473 raised the question whether a replacement policy incepted at midnight on the first day of cover, or whether it incepted at the hour on which the first policy was stated to terminate.

The decision of Davies J in the Federal Court of Australia in Aquagenics Pty Ltd v Certain Underwriters at Lloyd’s [2017] FCA 634 says nothing dramatically new, but contains important analysis of exactly when a claim is made against the assured for the purposes of a claims made policy and, also, the scope of the claim when additional elements of damages are added at a later date.

In Howe v Motor Insurers’ Bureau [2016] Lloyd’s Rep IR 359 Stewart J discussed a series of issues of law and procedure relating to an English claimant injured in a motor accident in France by an unidentified driver driving an untraced vehicle. Soon afterwards the Supreme Court reached its decision in Moreno v Motor Insurers’ Bureau [2016] Lloyd’s Rep IR 99, which affected a significant part of the reasoning in Howe.

The Consolidated Motor Insurance Directive, European Parliament and Council Directive 2009/103/EC requires insurance for the victims of road users. The Directive does not, however, extend to the driver. Whether or not the driver is covered is first party rather than third party and is a matter for the policy.

The New South Wales Court of Appeal has in AAI Ltd v GEO Group Australia Pty Ltd [2017] NSWCA 110, upheld the first instance judgment in Mace v Justice and Forensic Health Network [2016] NSWSC 803 (featured in Insurance Law Monthly, (2016) 28 ILM 8 7). The issue in this case was the scope of an insuring clause in a policy covering liability for medical malpractice.

The short question in Glasgow (the bankruptcy trustee of Harlequin Property SVG Ltd) v ELS Law Ltd and Others [2017] EWHC 3004 (Ch), a decision of Robin Dicker QC, sitting as a Deputy High Court Judge, was whether legal expenses insurers had a priority claim for payment of premiums where the assured successfully recovered damages but was otherwise insolvent. It is clear from the judgment that in the absence of some form of agreement conferring priority, the general law will not grant priority.

In PT Buana Samudra Pratama v Maritime Mutual Insurance Association (NZ) Ltd (The Buana Dua) [2011] EWHC 2413 (Comm) the court had to consider whether it was open to a following market underwriter to advance defences alleging that the assured had been in breach of warranty or had used fraudulent devices after the claim had been settled by the lead underwriter. The decision is discussed by David Turner QC of 4 New Square.

The Insurance Act 2015 has swept away the rules in the Marine Insurance Act 1906 on non-disclosure and misrepresentation by business assureds, and has replaced them with a new regime of "fair presentation". The most important changes relate to the meaning of "knowledge" for disclosure purposes and the introduction of proportional remedies for breach.