Insurance Law Monthly

In Fibretech Holdings Ltd v Vero Insurance New Zealand Ltd [2021] NZHC 3104 Nation J, sitting in the New Zealand High Court, considered whether a settlement agreement removing all claims connected to the insured loss applied to a claim by the policyholder for premiums paid in error following the loss to which the settlement related.

In Flanagan v Bernasconi [2022] NSWSC 381 the claimant sued her insurance broker for negligence in advising her to switch insurers, thereby leaving her uninsured for damage to her swimming pool. There was little doubt as to the negligence; the key issue was whether insurance would have been available for the precise loss suffered, ie whether the broker’s negligence had been causative of the loss.

In Buttar Construction Ltd v Arshdeep [2021] EWCA Civ 1408; [2022] Lloyd’s Rep IR Plus 15 the Court of Appeal considered the provisions of CPR 25.7(1) under which the court may order the payment of an interim award of damages in a case where there are two or more defendants, but it is not clear which of them faces liability. The importance of this for insurers is that an order may be made in such a case only where the defendants are insured.

In AIG Europe SA and Others v John Wood Group plc and Another [2022] EWCA Civ 781 the Court of Appeal has upheld the decision of Jacobs J, [2021] EWHC 2567 (Comm). Here, insurers sought anti-suit injunctions against policyholders who had commenced judicial proceedings in Alberta allegedly in breach of jurisdiction and arbitration provisions in the various policies that constituted the policyholders’ “Insurance Tower”. The case turned on established principles, but the matter was complicated by the existence of inconsistent provisions in the contracts.

In MDS Inc and Another v Factory Mutual Insurance Co 2021 ONCA 594 the Ontario Court of Appeal, reversing a very lengthy first instance decision, has confirmed that loss of use is not physical damage for the purposes of a business interruption policy. Although this was not a Covid-19 case, the judgment confirms that physical damage requires some form of change in the subject matter and not simply an inability to use the subject matter.