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.
Category: Insurance and Professional Negligence
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)
Can a principal look to a head contractor’s insurance policy to cover the principal’s own negligence?
This appeal concerned the scope of a contractor’s contractual obligation to obtain insurance for the benefit of both itself and its principal.
In 470 St Kilda Road Pty Ltd V Robinson  FCA 1420 Kenny J considered the ‘professional services’ exclusion in a directors’ and officers’ liability insurance contract. The case provides a useful review of the authorities dealing with this exclusion, and is relevant in respect of interpreting exclusion clauses in insurance contracts more generally.
In Expense Reduction Analysts Group Pty Ltd & Ors v Armstrong Strategic Management & Marketing Pty Ltd & Ors  HCA 46 the High Court has confirmed that accidental disclosure of documents over which legal professional privilege is claimed will not amount to a waiver of such privilege. The appropriate course, in accordance with good practice management, will normally be for the recipient of the documents to return them to the solicitor of the party claiming privilege, and for that party to seek leave to amend its List of Documents. Failing to take such a pragmatic approach and raising technical legal points may in the circumstances be a breach of a party’s and its legal representatives’ obligations under the NSW Civil Procedure Act (and, it follows, the Victorian Civil Procedure Act).
The United Kingdom Supreme Court has recently decided a case interpreting the ‘inherent vice’ exclusion under the widely used Institute Cargo Clauses (A) policy and the equivalent exclusion under the Marine Insurance Act 1906 (UK) (‘MIA’) in contradistinction to the insurance coverage term ‘peril of the sea’. Because the Marine Insurance Act 1909 (Cth) is for all intents and purposes identical to the MIA, and because of the wide customary usage of the Institute Cargo Clauses, the case is important to all practitioners in the fields of marine insurance and international trade law.