Insurance Law Monthly

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.

Professional indemnity policies, including directors' and officers' policies, that offer cover on a composite basis to two or more persons, frequently exclude "insured v insured" claims. The purpose of that exclusion is to prevent collusion between the insured persons. There is little authority on the meaning of this exclusion.

The short question before Hargrave J in the Supreme Court of Victoria in Guastalegname v Australian Associated Motor Insurers Ltd [2017] VSC 420 was whether a policy exclusion for “soil movement” encompassed the expansion and raising of the level of soil, ie, “heave”.

The Road Traffic Act 1988, implementing EU law, requires insurance to be in place in respect of liability caused by or arising out of the “use” of a motor vehicle. Recent English cases have given “use” an expansive meaning. The Court of Justice of the European Communities in Rodrigues de Andrade and Another v Salvador and Others Case C-514/16 appears to have adopted a narrower approach, although it may be that the judgment can be confined to the specific question of a vehicle being used not for transportation but rather as a source of power for electrical equipment.

The decision of the CJEU in Fidelidade-Companhia de Seguros SA v Caisse Suisse de Compensation and Others Case C-287/16 is likely to be a major shock to the UK motor insurance industry. It demonstrates that the Road Traffic Act 1988 is out of line with EU law as embodied in the Consolidated Motor Insurance Directive 2009 in significant respects.

In Cruise and Maritime Services International Ltd v Navigators Underwriting Agency Ltd (The Marco Polo) [2017] EWHC 843 (Comm) Knowles J rejected a claim to an indemnity against alleged liabilities incurred to passengers on board a cruise ship following an outbreak of norovirus. The decision is discussed by Ben Smiley of 4 New Square.