INSURANCE LAW CHAPTER ONE NATURE OF CONTRACT OF INSURANCE

Transcription

1 INSURANCE LAW ISBN Author: Nasser Hamid Binding: Softcover / 693 pages Publication Price: MYR The law is stated as of February 20, 2009 CHAPTER ONE NATURE OF CONTRACT OF INSURANCE Insurance Meaning of Contract of Insurance Meaning of Development of English Insurance Law Contract of Indemnity Insurance Policies Indemnity or Reinstatement Basis Indemnity Policy & Third Parties Liability Insurance Liability Insurance Notice Provision in Policy Notice Prejudice Rule NATURE OF INSURANCE POLICIES Composite & Joint Policy Difference Policy on Goods or a Policy on Liability Insurance Policy For Benefit of Another No Establishment of Trust Scope of Insurance Policies Insurance Policies Classification of Valued and Unvalued policy INSURABLE INTEREST Subject Matter of Insurance Insurable Interest Meaning of The Macaura Principle Contractor Insurable Interest Moral Certainty & Insurable Interest Agent & Insurable Interest Bailee & Insurable Interest Shareholders & Insurable Interest Personal Property Interest and Insurable Interest Pledgee Insurable Interest RISK Risk Insurance Policy Risk Insured Against Personal Accident Policy Risk Insured

2 All Risk Cover Contractor s All Risk Policy Jewellery All Risk Policy All Risk Policy Jewellery Kept at Bank Broker s Slip Complete Contract TYPES OF POLICIES Life Insurance Life Policies United Kingdom The Life Assurance Act Life Insurance Distinction between Basic Death Benefit Policy and Accidental Death Benefit Policy Life Policy Basic Accidental Dismemberment of Limb Benefit Death & Exclusion Clause Personal Accident Insurance Professional Indemnity Policy Professional Indemnity Policy Period of Insurance FIRE INSURANCE Characteristics of Contract of Fire Insurance Cause of Fire Immateriality Nature of Fire Insurance Setting Fire Charge of Fraud High Degree of Probability Fire Insurance Goods Insured by Bailee Fire Insurance Liability of Tenant MARINE INSURANCE Introduction Marine Insurance Principles Marine Insurance Insurable Interest Marine Insurance Risk to Be Insured Peril of the Sea Seaworthy Ship Perils of the Sea Unseaworthiness of Ship Privity of the Assured Meaning of Privity of the Assured Type of Knowledge Unseaworthiness Privity The Law Marine Insurance Evidence of Loss of Ship Negligence of Crew Marine Insurance Unlawful Adventure Marine Insurance Act Marine Insurance Doctrine of Contribution Marine Insurance Entitlement of Underwriter Mortgagee s Interest Insurance Abandonment Marine Broker Degree of Skill Marine Insurance Obligation of Assured to Underwriter Warranty Warranties Case Law Codification in Marine Insurance Act

3 Express Warranty & Defences Class Maintained Warranty Bailee Clause Entitlement to Recover Costs Records of Classification Authority Subrogation in Marine Insurance Subrogation No Distinction between Marine and Non Marine cases Shipowner Fraud of Agent CHAPTER TWO CONTRACT OF INSURANCE FORMATION & TERMS AND CONDITIONS Formation of Insurance Contract Offer to Enter into Contract Contract Prohibited By Statute Insurance contracts Date of Conclusion of Contract PROPOSAL FORM Proposal Form Basis of Contract Declaration in Proposal Form Basis Clause Proposal Form Construction of Proposal Form Construction of Questions in Proposal Proposal Form Failure to Disclose Ambiguous Questions Proposal Forms Nature of Representations Representation Underwriters Execution of Proposal Form Proposal Forms & Premiums Insurance Policy Not Issued Before Loss Acceptance of Proposal Presumption PREMIUMS Payment of Premiums Acceptance of Proposal Acceptance of Premiums Premiums Equitable and Beneficial Interest in Insurance Policy Premiums Overvaluation COVER NOTE Cover Notes Interim Receipt Genuine Insurance Certificate Insurance Policy Renewal & Extension MISTAKE & RECTIFICATION Formation of Contract Mistake Rectification Common Mistake

4 RECTIFICATION Introduction Insurance Policy Rectification Rectification Principle of Jurisdiction Rectification Burden of Proof Rectification Section of the Specific Relief Act TERMS OF INSURANCE CONTRACTS Terms & Conditions Observance of Terms & Conditions of Policy Conditions in Insurance Policies Conditions Types of Conditions Condition Precedent Condition Precedent Liability of Insurer Condition Precedent Waiver Condition Precedent Breach of Breach of Condition Burden of Proof Breach of Condition by Assured Reliance on Waiver or Estoppel Warranties Breach of Warranties Effect of Representations Principles Representation Whether a Warranty Estoppel by Representation Representations Subsequent Underwriters Representations and Warranties in Fire Policies CHAPTER THREE INTERPRETATION OF INSURANCE CONTRACTS RULES OF CONSTRUCTION General Rules of Construction Principle of Objectivity Construction of Policy of Insurance Rules of Construction of Insurance Policies Insurance Policy in Mandatory Statutory Form Nature of Cover Interpretation of Contract Cover Third Party Rights Risk Insured Against Interpretation of Interpretation Commercial Principles and Good Business Sense Construction of Contract Implied Terms INTENTION OF PARTIES Construction of Insurance Contract Intention of Parties Duty of Court Clause or Phrase Doubts Intention of Parties Negotiations

5 WORDS Ordinary Meaning of Words Words Used Context Literal Meaning of Words Grammatical Sense Useful Guide Clear Words Deletion Deleted Words Effect of CLAUSES Clause Commercial Object Clauses Inapplicability Basis Clause Interpretation of Notice Provision in Insurance Policies Strict Compliance Clause Exempting Liability for Negligence Exception Clause in Proviso Motor Insurance Policy Bailee Clause Marine Insurance Costs of Proceedings against Third Parties Warranties Construction of AMBIGUITY Construction of Insurance Policy Ambiguity Interpretation of Insurance Contract Ambiguity Contra Proferentum Rule Ambiguous Words Contra Proferentum Rule Contracts of Insurance Contra Proferentum Rule Construction and Latent Ambiguity Indemnity Clause and Exemption Clause Ambiguity Unambiguous Words Motor Insurance Policy Contra Proferentum Rule Mistakes on the Face of the Contract CHAPTER FOUR DISCLOSURE DUTY OF DISCLOSURE Duty of Disclosure Introduction Duty of Disclosure Statutory Requirement Insurance Contract Contract based on the Utmost Good Faith Pre contractual Duty of Disclosure Disclosure Basis of Duty Disparity in Negotiating Position between Parties Duty of Disclosure of Insurer and Insured Duty of Disclosure Corresponding Duty of Insurer Disclosure Duty of Assured Time for Disclosure

6 Duty of Disclosure Burden of Proof Requirement of Disclosure Tests Circumstances or Facts Material to Require Disclosure to Insurers Material Facts Duty to Disclose Material Facts Material Facts Tests Prior Losses Disclosure Duty of Disclosure Conditions for Avoidance of Contract Motor Insurance Duty of Disclosure Duty of Disclosure & Workman s Compensation Misrepresentation Duty of Disclosure Avoidance for Misrepresentation and Non Disclosure Disclosure Ejusdem Generis Rule Disclosure & Change of Circumstances NON DISCLOSURE Non Disclosure Consequences of Non Disclosure Non Disclosure & Underwriters Doctrine of Waiver Disclosure & Renewal CHAPTER FIVE AGENCY Agents Agency General Principles Agency Insurance Law Agent s Implied Authority Agent Proof of Authority Knowledge of Agent Agent Broker Insurance Broker Duties of Contracting out of the Principal Rule Notice to Agent & Liability of Principal Undisclosed Principal Undisclosed Principal Liability of Agent Proposal Forms Completed by Agents Knowledge of Agent Reports Completed by Agent of Insurer CHAPTER SIX INSURANCE CLAIMS INTRODUCTION

7 Insurance Policy Claims Nature of Claim against Insurer Liability of Insurer THE CLAIM Claims Duty of Claimant Incontestability Clause Negligence and Indemnity Clause Negligence and Accident Motor Insurance Policy Claims Damage to Car Marine Insurance Claim Perils of the Sea Injury Definition as within Policy Third Party Liability Cases Co Insurers Claim for Contribution Interest Claim Interest Property Insurance Maximum Liability Basis Exaggerated Claims FRAUDULENT CLAIMS Fraudulent Claims Fraudulent Claim Fraud Burden of Proof Fraud & Joint Tortfeasors THE LOSSESS Types of Losses Loss of Goods Loss Claims Consequential Loss Meaning in Insurance Law Loss or Damage Acts of Omissions Wilful Misconduct Loss Fraudulent Claim Cause of Loss Proximate Cause of Loss Proximate Cause Principles Ship s Loss Proximate Cause Death Proximate Cause THE SUIT Causes of Action Insurer Notice of Proceedings Notice of Proceedings Evidential Burden Acquiescence as to Outcome of and or Waiver of Condition as to Notice Client Privilege Insurer and Assured Joint Privilege BURDEN OF PROOF

8 Claims Burden and Standard of Proof Proof of Existence of Insurance Policy Loss Burden of Proof Misrepresentation Defence Limitation Restrictive Conditions Validity of Fire Insurance Limitation Clause Interpretation of Position in India ASSESSMENT Award of Indemnity Calculation Market Value of Property Destroyed Mitigation of Loss The Insured Shall Take Reasonable Precautions REINSTATEMENT Introduction Cost of Reinstatement Cost of Reinstatement Principle of Betterment SUBROGATION Subrogation Meaning of Doctrine of Subrogation Right of Subrogation Insurer s Right of Subrogation Suit against Third Party & Subrogation Subrogation Pleadings Cause of Action & Subrogation Fire Insurance & Subrogation Words & Phrases Insurance Terms Insurance Contracts Act (Australia) Insurance Act (Act ) (Malaysia) The Marine Insurance Act (UnitedKingdom) Insurance (Amendment) Act