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Subrogation: persons protected by insurance
It is trite law that insurers do not possess subrogation rights against a person who is insured under the policy for the loss in question. That point typically arises where the primary assured, A, agrees with B to insure in their joint names. In that situation it was confirmed by the Court of Appeal in Gard Marine & Energy Ltd v China National Chartering Co Ltd [2015] EWCA Civ 16 that the contract between A and B is to be construed as removing A’s right to claim against B where the loss is one that would have been covered by the policy, so that there are no rights to which the insurers can be subrogated.
Online Published Date:
01 September 2016
Appeared in issue:
Vol 28 No 09 - 01 September 2016
Causation: the effect of exclusions
New Zealand Fire Service Commission v Legg [2016] NZHC 1492, a decision of Nation J in the High Court of New Zealand, raises several points of interest on the questions of burden of proof, causation and loss caused by irrelevant terms. The latter point is of particular interest in England given the recent enactment of section 11 of the Insurance Act 2015.
Online Published Date:
01 September 2016
Appeared in issue:
Vol 29 No 3 - 01 March 2017
Subrogation: co-insurance
Cape Distribution Ltd v Cape Intermediate Holdings plc [2016] EWHC 1119 (QB) involved a contract for the sale of a business. The seller incurred liability to its employees for exposure to asbestos. The insurers, having indemnified the assured for the claims, sought to recover its payments from the purchaser under an indemnity clause. Those straightforward facts raised a variety of issues as to the construction of the sale agreement and of the insurance taken out by the seller. The case was concerned only with preliminary issues: just how they impact on the actual subrogation claims will not be clear until the matter comes to trial, unless of course the answers to the preliminary issues result in a settlement between the parties.
Online Published Date:
01 September 2016
Appeared in issue:
Vol 28 No 12 - 01 December 2016
Legal expenses insurance: scope of coverage
The Legal Expenses Directive, Council Directive 87/344/EEC, confers upon the assured under a legal expenses insurance policy the right to appoint an independent lawyer. Massar v DAS Nederlandse Rechtsbijstand Verzekeringsmaatschappij NV Case C-460/14, a reference to the Court of Justice of the European Union by the Supreme Court of the Netherlands, discusses the scope of the Directive and the types of proceedings and inquiries that give rise to the right conferred by the Directive.
Online Published Date:
01 September 2016
Appeared in issue:
Vol 28 No 11 - 01 November 2016
Liability insurance: governing law and jurisdiction
To what extent should the governing law in a standard form global insurance policy have an impact upon the question of the appropriate forum for the determination of an insurance dispute? That was essentially the question to which Blair J directed his attention in the matter of AXA Corporate Solutions Assurance SA v Weir Services Australia Pty Ltd [2016] EWHC 904 (Comm). It’s important that practitioners take note of his conclusions. The case is discussed by Paul Fisher, Barrister, 4 New Square Chambers, Lincoln’s Inn.
Online Published Date:
01 September 2016
Appeared in issue:
Vol 28 No 09 - 01 September 2016
Presentation of the risk: interpretation of express presentation clauses
The Insurance Act 2015, which came into force on 12 August 2016, recasts the existing rules of utmost good faith set out in sections 17 to 20 of the Marine Insurance Act 1906 and replaces them with a regime based on proportional remedies rather than an absolute right for the insurers to avoid liability. Insurers have nevertheless long recognised that reliance on strict legal rights is not always appropriate, and express clauses modifying those rights are commonly found.
Online Published Date:
01 September 2016
Appeared in issue:
Vol 28 No 10 - 01 October 2016
Untraced drivers: accidents occurring in the EEA
The Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003, implementing the EU’s Fourth Motor Insurance Directive, provide for the payment of compensation by the MIB where a British resident is injured in a motor vehicle accident in another country in the European Economic Area. The Regulations make separate provision for compensation where there is an identified insurer and where there is no identified insurer.
Online Published Date:
01 September 2016
Appeared in issue:
Vol 28 No 10 - 01 October 2016
Liability insurance: employers’ liability
A bare majority of the Supreme Court has, in Campbell v Gordon (Scotland) [2016] UKSC 38, an appeal from the Scottish courts, affirmed the long-standing ruling in Richardson v Pitt-Stanley [1995] QB 123 that failure by an employer company to obtain the insurance demanded by the Employers’ Liability (Compulsory Insurance) Act 1969 does not impose any tortious liability upon the individuals in control of the company.
Online Published Date:
01 September 2016
Appeared in issue:
Vol 28 No 09 - 01 September 2016
Property insurance: riot damage
The Riot (Damages) Act 1886 permits a person suffering property damage in the course of a riot to claim compensation from the local police authority. The legislation was considered in Yarl's Wood Immigration Ltd v Bedfordshire Police Authority [2009] EWCA Civ 1110, where the Court of Appeal held that it extended to public property being administered by a private organisation (a detention centre).
Online Published Date:
01 September 2016
Appeared in issue:
Vol 28 No 12 - 01 December 2016
Motor insurance: injuries suffered in the EU
The EU’s five Motor Insurance Directives, now brought together in the Consolidated Motor Insurance Directive 2009, seek to ensure that an individual injured by a motor vehicle anywhere in the EU is entitled to seek compensation in his or her home member state. The relevant provisions, originally set out in the Fourth Motor Insurance Directive, were implemented in the UK by the Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003.
Online Published Date:
01 September 2016
Appeared in issue:
Vol 28 No 10 - 01 October 2016
Directors’ and officers’ insurance: costs incurred in investigations and proceedings
The decision of Hargrave J (Melbourne Commercial Court) in Hird v Chubb Insurance Co of Australia Ltd [2016] VSC 174 is one on the interpretation of the representation and defence costs provisions of a directors’ and officers’ liability policy. The court refused to follow US cases involving similar wordings. The drafting of the policy is quite specific, but the judgment demonstrates the sorts of issues that arise where there is a preliminary investigation into a director’s conduct and how this particular form of wording dealt with them.
Online Published Date:
01 September 2016
Appeared in issue:
Vol 28 No 11 - 01 November 2016
Liability insurance: defence costs
Legg and Others v Sterte Garage Ltd and Another [2016] EWCA Civ 97 raised the question of exactly when an insurer defending a claim is required to pay the costs of the successful claimant. Two separate questions were discussed in Legg: could an order be made against the insurers under section 51 of the Senior Courts Act 1981 even though they were not parties to the proceedings; and, if not, did the policy cover the costs of the assured for a successful claim against it so that they could be recovered from the insurers under the Third Parties (Rights Against Insurers) Act 1930?
Online Published Date:
01 September 2016
Appeared in issue:
Vol 28 No 09 - 01 September 2016
Insurable interest: insurable interest in property
The Law Commission's draft Insurable Interest Bill, published in April 2016, proposes to retain much of the existing legal structure. The proposals would seemingly extend the definition of insurable interest to catch some cases where there are legitimate rights capable of protection by insurance but as yet not recognised by the law. The decision of the Outer House of the Court of Session in Comlex Ltd v Allianz Insurance plc [2016] CSOH 87 is a relatively straightforward case where there was clearly insurable interest, but the judgment is nevertheless a useful illustration of the point that legal or equitable ownership are not the exclusive touchstones of insurable interest.
Online Published Date:
01 September 2016
Appeared in issue:
Vol 28 No 08 - 01 August 2016
Professional indemnity insurance: aggregation
In AIG Europe Ltd v OC320301 LLP [2015] EWHC 2398 (Comm) 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”). His decision was modified on appeal by the Court of Appeal in AIG Europe Ltd v OC320301 LLP [2016] EWCA Civ 367.
Online Published Date:
01 September 2016
Appeared in issue:
Vol 28 No 08 - 01 August 2016
Professional indemnity insurance: construction of claims made cover
Cooke J in ARC Capital Partners Ltd v Brit UW Ltd [2016] EWHC 141 (Comm) discussed the meaning of a number of clauses commonly found in professional indemnity policies, although to date not litigated. Those clauses included a Retroactive Date exclusion and a Continuity of Cover extension.
Online Published Date:
01 September 2016
Appeared in issue:
Vol 28 No 08 - 01 August 2016
Liability insurance: professional indemnity
A professional indemnity policy covers the activities of the assured as defined by the insuring clause. Mace v Justice and Forensic Health Network [2016] NSWSC 803 is one of many authorities discussing the scope of the definition. The context in the present case was a medical malpractice policy.
Online Published Date:
01 September 2016
Appeared in issue:
Vol 28 No 08 - 01 August 2016
"The most significant reform of UK insurance law in over a century"
The Insurance Act 2015 has shifted existing principles of insurance law as well as the balance of risk between insurers and policyholders. Ffion Flockhart and Charlie Weston-Simons outline what the Act means for the financial services sector and provide practical tips for compliance and risk staff.
Online Published Date:
22 September 2016
Appeared in issue:
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The Insurance Act 2015 and marine insurance
The Insurance Act 2015 entered into force on 12 August 2016. This article explains the basics of the Act in relation to marine insurance.
Online Published Date:
22 September 2016
Appeared in issue:
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