Insurance Coverage Disputes: 2022 (Year to Date)

Go Back 22.8.22 INSIGHTS

Attached is a list of all reported insurance cases of note so far in 2022 with hyperlinks. Away from the obvious BI related cases (important as they are), the Commercial Court has been busy dealing with a broad spectrum of wordings and issues thus far this year. From aggregation issues in a commercial combined policy; to rectification in a trade credit dispute; to determining an Enterprise Act claim following a successful marine cargo claim; to difficult co-insurance issues in a project insurance policy; to an exclusive jurisdiction clause in an excess layer policy; and the enforceability of a choice of law clause in a marine liability policy to name a few.

What can the prudent insurance practitioner take from this run of reported cases? Well, each case is a perfect illustration of how a judge will seek to dissect the issues and evidence before them. Each case is also a quick reference to the principles of legal construction and relevant authorities used to resolve these matters. But as useful as each case is, brokers and claims professionals from all sides of the market shouldn’t get too excited or wax lyrical about a particular case. Rarely does one authority in and of itself provide the answer to the problem claim sitting on your desk, because every claim has its own unique set of facts and characteristics which may, and frequently does, make a huge difference to the outcome. A small variance in policy language could have a big impact and result in a different outcome: covid BI claims are an obvious case in point. But each case and the collective body of law that we have in this country is still incredibly important to the market generally.  

In contrast to what we have seen, what coverage disputes are we not seeing reported decisions on and why is that? For example, why aren’t we seeing more cases on the Insurance Act (s.13A included) given how landmark the Act was and yet seemingly so uncertain in places? On Cyber wordings generally? On issues such as scope of PI notifications following Grenfell or the timing of those notifications? On good faith in the claims handling process or lack thereof? On decisions made by the Financial Ombudsman? More reported cases are needed, no question. Private forms of dispute resolution have a lot to do with why we aren’t seeing more cases on the type of issues we want – and arguably need – to see being heard in the Commercial Court.  However, further reported cases cannot fix some of the perceived deficiencies that we arguably have in the market right now – for example, the extent to which third parties are protected under EL/PL policies where the policyholder has breached fair presentation principles and the policy is avoided.

Enough musing for now, enjoy what’s left of the summer!

This post is intended to provide guidance of a practical nature but does not contain legal advice or advice as to what action you should or should not take specific to your insurance needs or those of your business, or with regard to any particular situation.