If defective panels requiring removal were affixed to a building’s façade, by means of permanently sticking the panels to metal strips nailed or screwed into the structure of the building, does this constitute unintended or unexpected property damage at the time the panels were affixed?
Category: Insurance and Professional Negligence
This article provides a brief overview of the case law arising from claims under business interruption insurance policies for COVID-19 related losses. It also suggests some broader lessons that may be taken from the litigation.
A judgment of the Court of Appeal on the determination of a preliminary issue whether an insured was entitled to indemnity explores the nature of the insured’s obligation to take reasonable precautions to comply with certain regulations and guidelines.
Justice Moshinsky found that the Insured notified the Insurer of facts that might give rise to a claim against the Insured in a class action. His Honour also found that the Insurer breached its duty of utmost good faith. Thus, his Honour upheld the Insured’s claim for the Insurer to pay his legal costs in the class action.
Victorian Court of Appeal clarifies the ‘reasonable care’ requirement in proportionate liability cases
The Victorian Court of Appeal has clarified the law in relation to apportionable claims and determined that a failure to take reasonable care must be alleged as part of the pleaded claim for a claim to be apportionable.
The New South Wales Court of Appeal has held that a brothel owner’s failure to disclose an association with a bikie gang before the grant and renewal of insurance policies for the brothel did not entitle the insurer to decline cover.
Few insurance law issues have caused greater industry concern than the entitlement of third-party claimants to issue proceedings against liability insurers. Legislation recently enacted in NSW may only create further difficulties.
In this Supreme Court decision, Hargrave J confirmed that an Insured’s proactive conduct may constitute reasonable defensive action covered under the Defence Costs extension of a D&O Policy, depending (as always) on the Policy’s wording. However, Mr Hird could not establish that his Federal Court action seeking declaratory relief against ASADA was causally linked to the Defence Costs extension.
The Legal Services Council’s inaugural guideline and direction deals with lawyers’ costs disclosure obligations. Simply put, we are required to provides single figure estimates of our costs. But even the guideline and direction seems to recognize that things will rarely be that simple…
Potent antidote to denial: at behest of liquidators, court declares insurer must indemnify directors
Liquidators brought action against company directors under s 588M(2) of Corporations Act 2001 (Cth) – Liquidators sought to join third party insurer after insurer denied liability – Supreme Court had jurisdiction to grant declaratory relief on liquidators’ application – Meaning of justiciable controversy
In Pantaenius Australia Pty Ltd v Watkins Syndicate 0467 at Lloyds  FCA 1 Foster J considered whether one insurer (‘Pantaenius’) could claim contribution from another insurer (‘Nautilus’) regarding damage to a yacht.
The case demonstrates that the courts continue to interpret the scope of s 54 of the Insurance Contracts Act 1984 (Cth) (‘ICA’) broadly, and beneficially to insureds. The case also confirms that a co-insurer can rely on s 54 to establish double insurance for the purpose of obtaining contribution.
Insurers on the hook: High Court holds that insurers of insolvent companies can be joined to proceedings commenced by third parties against those companies
The High Court of Australia has held unanimously that a person who commences proceedings against an insolvent company or a bankrupt individual can join that defendant’s insurer to the proceedings and seek a declaration that the insurer is liable to indemnify the defendant.
The Full Court of the Federal Court held unanimously that the advocate’s immunity does not apply to an interlocutory decision to strike out a cause of action.
Insurance –– Exclusion of liability under insurance contract – Whether restrictions or limitations were inherent in the claim – Whether Insured’s claims outside the scope of policy – Construction of section 54(1) of the Insurance Contracts Act 1984 (Cth)