All insurance contracts are fiduciary contracts in other words they involve a level of trust on either side, on the part of the insured and the insurer. Utmost good faith (uberrimae fidei) forms the basis of all such contracts. Both the insurer and the insured must abide by this principle. This essay will examine the role of the insurer and the insured in ensuring full disclosure of all material facts. The disclosure of information is of crucial importance as failure to disclose can render the contract void. We will look at cases where utmost good faith and disclosure of material facts were crucial. The Marine Insurance act 1906 section 17 states “A contract of marine insurance is a contract based upon the utmost good faith, and, if the utmost good faith be not observed by either party, the contract may be avoided by the other party.” This act also stated in section 18 that the duty to disclose falls on the insured because it is only the insured who has full knowledge of the risk and as a consequence failure to disclose by the insured may allow the insurer to avoid the contract. In other words this act puts the onus on the insured to disclose and in doing so prevents fraud but it can also allow the insurer to avoid paying i.e. to get out of the contract if they can show that the insured has failed to disclose.
One of the first landmark insurance cases dealing with disclosure was the Carter v Boehm (1776) case. Carter took out insurance to cover fort Marlborough in the East Indies. The insurance covered attack against foreign invasion. They knew they would be able to withstand an attack against natives however the French army succeeded in invading the fort. The insurance company argued that the fort’s inability to withstand attack...
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....g. where the insured fails to “read and check the questions and answers thoroughly enough.” (Ombudsman news May/June 2005)
In the case of non-disclosure the onus is then on the insured to prove that the underwriter would have entered the same contract had he known the non-disclosed facts. In the case of Aro Road and LandVehicle V. The Insurance Corporation of Ireland (1986) the non-disclosed fact was that the insured was a convicted criminal. The insurer insured the vehicle for the transport of goods. The vehicle went up in flames. The insurer claimed that the material fact of the insured being a criminal had not been revealed and that this would have effected his judgement. The court agreed but the court of appeal stated that there was no direct connection between the material fact and the car going up in flames and ruled that the insurance company had to pay out.
The case of Kamloops v. Nielson was a landmark decision for tort law, since it established the duty of care principle in Canadian private law, which prior to this case was used in the Anns v. Merton case and expanded the scope of duty first identified in Donoghue v. Stevenson. In the historic case of Donoghue v. Stevenson, duty of care was established to include anyone that could be foreseeably harmed by someone’s actions, creating the neighbour principle. The Anns v. Merton case expanded the scope of the neighbour principle to including public bodies, such as the municipality. The case involved a faulty building foundation, which resulting in requiring repairs for the house, and whether the municipality should have to pay for the repairs, since it was the job of the municipality to inspect and ensure the building was properly constructed. Whether public tax allocations should be subject to tort litigations was placed in question in the case but the municipality was held liable for damages nevertheless.
“Reviewed all of the arguments in favor of the immunity, and demolished them so completely as to change the whole course of the law. It has been followed by a deluge of decisions holding that there is no immunity at all, and that a charity is liable for its torts to the same extent as any other defendant.” (Prosser on Torts, 3d Ed., 1964,p
- DeLovio v. Boit (1815): Maritime insurance policies are within admiralty & maritime jurisdiction of US b/c maritime contracts include charter parties, affreightments, marine bonds, Ks for repairing, supplying & navigating ships, Ks between part owners – etc – AND insurance.
Axiak v Ingram (2012) 82 NSWLR 36 (Axiak) was extremely pertinent, standing as the “only decision of this court dealing with the construction of the blameless accident provisions of the MACA”. Critically, the case established that ‘non-tortious negligence’ is excluded from the MACA’s definition of “fault” in s3. Such provisions artificially place fault upon the driver in order to secure CTP claims for victims.
Allstate insurance is the second largest property and casualty insurance company by premiums in the United States. Allstate insurance handles about 12% of the U.S home and auto insurance market. (Allstate, 2014). Many of Allstate’s customers fall under what one could refer to as a traditional selection of insurance for automobiles. Recently, Allstate has noticed a major shortcoming in lifestyle insurance, which includes coverage for motorcycles, boats, and other recreational vehicles, in comparison to its competitors. The motorcycle insurance sector is a 10.4 billion dollar industry and growing (PRWEB, 2012). The U.S. Department of Transportation website reports some astounding figures, including that 5,370,035 motorcycles were registered three years before the article, 7,138,476 motorcycles registered at the time of the article, and grew to 9,477,243 registered motorcycles at the end of 2012 (NHTSA, 2013). It is obvious as to why Allstate would identify motorcycle insurance as a worthy lifestyle product to devote marketing research dollars into in order to develop new strategies for cornering a share of the market.
[8] Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co. of Australia Ltd (1919) 26 CLR 110
In America, the number of uninsured rises every year and no solution to the problem has
It can be argued that negligence should never be enough to warrant a sufficiency of culpability for a serious offence when they did not foresee they might bring about the result of the offence. There are various reasons to support the idea that culpability lies in choosing to act wrongly, therefore negligence should not be enough to be convicted of a serious criminal offence.
In the case of Norton vs Argonaut Insurance Company there are many factors which impacted the court’s ruling as to the parties who were responsible resultant wrongful death of the infant Robyn Bernice Norton. The nurses, doctors(independent contractors) and the the hospital though not formally charged
The liability for negligent misstatement may arise from pure economic loss. According to Steele (2010), ‘Economic losses will be regarded as “pure” if they do not flow from any personal injury to the claimant nor from physical damage to his or her property’. The boundaries between “pure” economic loss and the loss which is “consequential” from damage were established by the Court
Health insurance is very important in life. It is for this reason that insurance companies have designed different types of insurance as a strategy to provide services to all categories of people. Before purchasing insurance for an organization, there are considerations that should be put in place in deciding the best insurance for the employees. One of the most important factors is the number of employees. The mode of employment also matters, such as whether employees are full time or part time.
In order to critically assess the approach of the courts in allowing damages for pure economic loss in cases of negligence. One must first outline what pure economic loss is and what it consists off. Pure economic loss can be defined as financial loss or damage to one party caused by another party due to their negligence however the negligent act that is carried out is ‘purely’ economic and has no relation to any physical damage caused to any person or property. Numerous cases illustrate pure economic loss and losses that are deemed to be ‘purely economic’ are demonstrated under the Accidents Act 1976.
As Judge Learned Hand said, “The spirit of liberty is the spirit which is not too sure that it is right...”. Tort law is about compensation for the damage suffered. Nevertheless, it is also about balancing freedom and protection and there are two main ways to balance it. First of all, there is fault liability, which asks a question, did someone exercise a sufficient care. On the other hand, there is strict liability, in which, even though someone exercised sufficient care, can still be liable. Nevertheless, each jurisdiction tackles this problem in a different way. For the purpose of this paper, two jurisdictions which are most distinctive will be chosen, and that is French and English jurisdiction. In line with that, English law stems
terms firstly, where it involves two other contracts respectively. Then, I will mainly analyse the duties of the shipper in the contract of carriage. Next, the most discussion will be referred to the contract of marine insurance on the relationship between the assured and insured, as well as the insurance cover. Finally, I will analyse letters of credit as a method of pay... ... middle of paper ... ...
Marine Insurance is defined by section 7 of the Marine Insurance Act of 1909 as: