In The Cultural Foundation v Beazley Furlonge and Others  EWHC 1083 the Commercial Court considered the division of liability between primary and excess insurers in circumstances where it was unclear to which year the relevant claims had been notified. There were several other preliminary issues in this case, however the decision as to notification is of the greatest significance.
Author Archives: Sam Tacey
In Tonicstar Limited v Allianz Insurance PLC & Ors  EWHC 2753 (Comm) Mr Justice Teare confirmed that where an arbitration clause specifies that the arbitrators should have “experience of insurance or reinsurance”, it will not be sufficient for a proposed arbitrator to have experience of insurance or reinsurance law, or having worked as a professional advisor to the insurance or reinsurance industry; the experience must be in the business of insurance or reinsurance itself.
Court of Appeal holds that a failure to exercise a “duty to speak” can form the basis of an estoppel
In Ted Baker PLC v (1) AXA Insurance UK PLC (2) Fusion Insurance Services Ltd (3) Tokio Marine Europe Insurance Ltd  EWCA Civ 4097 Ted Baker PLC (TB) suffered significant business interruption losses as a result of goods stolen by a trusted employee. TB subsequently made claims against its insurers for those losses. At first instance, TB’s claim was rejected for two main reasons: first that TB was in breach of a condition precedent, on the basis that it failed to produce certain documentation required by the policy; and second, that the nature of the thefts was such that no single loss exceeded the excess in the policy. Eder J, at first instance, stated that he had not reached these conclusions “with any great enthusiasm”.
In Dalecroft Properties Ltd v Underwriters  EWHC 1263 (Comm), Mr Richard Salter QC (sitting as a Deputy Judge of the High Court) confirmed the defendant insurers’ right to avoid a property insurance policy following various misrepresentations relating to the state of repair of the insured property and non-disclosures relating to acts of vandalism to the property. The property in question was subsequently destroyed by fire and a claim was made by the insured. In response, the insurers purported to avoid the policy. On the facts, it was held that there were material misrepresentations and that material non-disclosures were made, such that the insurers were entitled to avoid the policy.
Court of Appeal confirms that payment of money into escrow account is not an insured loss under a liability policy
In WR Berkley Insurance (Europe) Limited v Teal Assurance Company Limited  EWCA Civ 25, the Court of Appeal upheld the first instance decision of Mr Justice Eder, and confirmed that the payment of monies into an escrow account did not constitute an insured loss under a liability insurance policy.
In Spire Healthcare v Royal Sun Alliance Insurance plc  EWHC 3278, the claimant sought declarations to the effect that an insurance policy it held with the defendant insurer contained no operative aggregation clause such that the total cover available to it would be £20m (the aggregate limit of the policy). The claimant also contended that if it was wrong, and an aggregation clause did exist (such that the maximum cover available would be £10m (the per claim limit of the policy)), then there should also be aggregation in respect of the excess payable in relation to each claim, so that a single excess of £25,000 should be payable in respect of a group of aggregated claims. The defendant took the opposite position, contending that there should be aggregation in relation to the limits of cover, but none in relation to the excess. The claimant (an operator of a number of hospitals) sought the declarations due to the large number of negligence claims it faced arising from the conduct of a single consultant surgeon.
Commercial Court dismisses appeal by reinsurers disputing that certain losses arising from the World Trade Centre attack in 2001 arose from one event
In Simmonds v Gammell  EWHC 2515 (Comm) the respondent insurer had participated in various layers of an excess liability insurance programme, insuring the Port of New York (PONY). The appellant reinsurer had participated in one of the relevant reinsurance contracts, reinsuring the respondent. The reinsurance contract provided cover of US$1.5 million, excess of $1 million, in respect of “each and every loss”. Loss was defined as a “loss…or a series thereof arising from one event”.