Professional Indemnity Insurance Policy for Barristers

Transcription

1 Professional Indemnity Insurance Policy f Barristers PREAMBLE In consideration of payment of the Premium, Suncp agrees to provide indemnity in accdance with the terms of this Policy. 1. INSURING CLAUSES 1.1 INSURING CLAUSE A Civil Liability Insuring Clause Suncp agrees to indemnify the Insured up to the Limit of Indemnity against civil liability f Claims f compensation first made against the Insured during the Period of Insurance and repted to Suncp during the Period of Insurance incurred in the conduct of the Business Statuty Proceedings Insuring Clause Suncp agrees to indemnify the Insured up to the Limit of Indemnity against civil liability f Claims f Compensation Orders and Costs Orders arising from Statuty Proceedings first made against the Insured during the Period of Insurance and repted to Suncp during the Period of Insurance incurred in the conduct of the Business. 1.2 INSURING CLAUSE B Defence Costs Insuring Clause Suncp agrees to pay Defence Costs in addition to the Limit of Indemnity PROVIDED THAT if a payment greater than the Limit of Indemnity has to be made to dispose of a Claim, the liability of Suncp f Defence Costs shall be such proption thereof as the Limit of Indemnity bears to the amount paid to dispose of the Claim. 1.3 CLARIFICATION F the sake of clarity, the indemnity provided to the Insured by Insuring Clauses A and B of this Policy includes cover f the following: Libel, Slander and Defamation Claims by any person f libel, slander defamation Trade Practices Act Claims made f damages compensation against the Insured f any breach of the Trade Practices Act 1974 (Commonwealth), the Fair Trading Act 1987 (NSW), the Fair Trading Act 1989 (Queensland), the Fair Trading Act 1985 (Victia), the Fair Trading Act 1987 (Western Australia), the Fair Trading Act 1990 (Tas), similar legislation enacted by any State Territy of the Commonwealth of Australia PROVIDED THAT there is no indemnity under this Policy f any claim arising from any actual alleged breach of the penal criminal provisions of any of those statutes. FINAL DRAFT 2. AUTOMATIC EXTENSIONS The following extensions to this Policy are included automatically. Each extension is subject to the terms of this Policy, including Insuring Clauses A and B, except to the extent that they are expressly varied by the extension. Other than by operation of extension 2.1, the inclusion of these extensions does not increase the Limit of Indemnity. 2.1 Automatic Reinstatement Limit of Indemnity Suncp agrees to reinstate the Limit of Indemnity f such amount, as may be paid by Suncp in respect of any Claim, so that the Policy remains in fce during the Period of Insurance f the Limit of Indemnity, PROVIDED THAT: the aggregate of the amounts so reinstated shall not exceed an amount equal to twice the Limit of Indemnity; under no circumstances shall Suncp be liable to pay me than a total of three times the Limit of Indemnity f all Claims during the Period of Insurance; and the liability of Suncp shall not exceed the Limit of Indemnity in respect of any one Claim. 2.2 Loss of Documents Suncp agrees to indemnify the Insured f Claims arising from the loss of any Documents (including but not limited to Documents which are the property of the Insured) which have been destroyed, damaged, lost mislaid and, after diligent search, cannot be found PROVIDED THAT: the discovery of such loss of Documents occurred during the Period of Insurance and was notified in writing to Suncp during the Period of Insurance; such indemnity shall be limited to the costs, charges and expenses of whatsoever nature incurred by the Insured in replacing and/ resting such Documents and any claim f such costs, charges and expenses shall be suppted by bills and/ accounts which shall be subject to approval by a competent person nominated by Suncp with the approval of the Insured; such indemnity shall be limited to the loss of any Documents: (a) which were in the physical custody control of the Insured any other person to whom the Insured entrusted, lodged deposited such Documents in the dinary course of business; (b) which occurred within the territial limits of the Commonwealth of Australia the Dominion of New Zealand; and (iv) the Excess shall not be applicable to this extension. 2.3 Dishonesty of Employees Notwithstanding Exclusion 3.3, Suncp agrees to indemnify the Insured f Claims arising from the fraud and dishonesty of Employees PROVIDED THAT: the Insured did not participate in and had no pri knowledge of the fraud and dishonest act; the Insured notifies Suncp as soon as is reasonably practicable upon becoming aware of the fraud and dishonest act; and PIBNAT 01/07/08 (Excl) Page 1

2 any indemnity provided under this extension shall not extend to any Claim f loss of money, negotiable instruments, bearer bonds coupons, stamps, bank currency notes. 2.4 Estates and Legal Representatives Suncp agrees to provide indemnity f any Claim made against the estate, heirs, legal representatives assigns of any Insured who is deceased, incompetent, insolvent bankrupt PROVIDED THAT such persons and Claims shall be subject to the terms of this Policy. 2.5 Direct of a Clerk Company Suncp agrees to indemnify the Insured who is a direct of a company which operates as a Barristers Clerk, f any Claim f professional negligence arising out of the Insured s perfmance as such direct in respect of the company s activities as a Barrister s Clerk. 2.6 Run Off Cover In the event that the Insured becomes a Retired Insured with a Retirement Date during the Period of Insurance, then Suncp agrees to indemnify the Retired Insured against civil liability f any Claim first made against the Retired Insured and repted to Suncp after the Retirement Date incurred in the conduct of the Business, PROVIDED THAT: such Claim is first made and repted to Suncp during the period of seven (7) years from the Retirement Date; such indemnity shall only apply in respect of any act, err omission occurring pri to the Retirement Date; written notification of the following matters has been provided to Suncp pri to the expiry of the Period of Insurance: (a) that the Insured has become a Retired Insured; and (b) the Retirement Date; (iv) any execut administrat of the Retired Insured s estate shall be subject to the terms of this Policy; and (v) Suncp s total liability f compensation, claimant s costs, Compensation Orders, Costs Orders and Defence Costs under this extension shall not exceed $1,000,000 in the aggregate f all Claims. 3. EXCLUSIONS Suncp shall not be liable to indemnify the Insured any other person in respect of any Claim: 3.1 Pri Or Pending Claims / Circumstances first made against the Insured pri to the Period of Insurance; arising from any matter disclosed notified to any insurer (including Suncp) pri to the Period of Insurance as either a Claim circumstances which may give rise to a Claim against the Insured; arising from circumstances of which the Insured had become aware pri to the Period of Insurance and which the Insured knew ( ought reasonably to have known) to be circumstances which may give rise to a Claim; (iv) arising from any matter which gives rise to a Claim circumstances which may give rise to a Claim against the Insured, pri to the Insured obtaining a practising certificate having the Insured s name admitted to the roll of barristers with the State Territy Bar Association referred to in Definition 5.2; 3.2 Retroactive Date based upon, attributable to, in consequence of an act, err omission committed alleged to have been committed pri to the date specified in the Certificate of Insurance as the Retroactive Date; 3.3 Fraud and Dishonesty based upon, attributable to, in consequence of: any dishonest, fraudulent, criminal malicious act, err omission; any wilful intentional breach of any statute, regulation, contract legal duty; 3.4 Assumed Obligation based upon, attributable to, in consequence of any liability, duty obligation: under a contractual term, warranty guarantee (unless liability would have existed regardless of the contractual term, warranty guarantee); assumed by the Insured outside the nmal conduct of the Business; in circumstances where the Insured has conducted the Business pursuant to any agreement understanding by which the Insured has surrendered waived any right of contribution indemnity, to which the Insured would otherwise have been entitled at law; unless the pri agreement of Suncp is obtained; 3.5 Fines and Penalties f punitive, aggravated, multiple exemplary damages, fines penalties imposed by law, including but not limited to civil penalties; 3.6 Terrism based upon, attributable to, in consequence of: any Act of Terrism, regardless of any other cause event contributing concurrently in any other sequence to such Claim; any action taken in controlling, preventing, suppressing in any way relating to any Act of Terrism. F the purpose of this Exclusion, an Act of Terrism means an act, including but not limited to the use of fce violence and/ threat thereof, of any person group(s) of persons, whether acting alone on behalf of in connection with any ganisation(s) government(s) which from its nature context is done f, in connection with, political, religious, ideological, ethnic similar purposes reasons, including the intention to influence any government and/ to put the public, any section of the public, in fear. Notwithstanding any other provisions contained in this Policy, this exclusion shall override anything contained in this Policy that is inconsistent with this Exclusion. 3.7 Occupier s Liability based upon, attributable to, in consequence of any occupation ownership of any real property by the Insured; 3.8 Trading Debts based upon, attributable to, in consequence of any trading debt incurred by the Insured any guarantee warranty given by the Insured in connection with a debt; 3.9 Bodily Injury and Property Damage based upon, attributable to, in consequence of: Bodily Injury of any person, other than a Claim f breach of professional duty in the conduct of the Business; loss of damage to tangible property (other than Documents); PIBNAT 01/07/08 (Excl) Page 2

3 3.10 Insurer s Right of Recovery in respect of which the Insured has at any time by deed agreement fegone, excluded limited any right to contribution, recovery indemnity from any person, unless the agreement of Suncp was obtained befehand; 3.11 Pollution based upon, attributable to, in consequence of: the actual, alleged threatened discharge, release, escape disposal of Pollutants into upon land, property, water the atmosphere; any direction, proceeding, voluntary decision enfcement action taken in connection with the moniting, containment, clean up, treatment removal of Pollutants; 3.12 Radioactivity and Nuclear Risk based upon, attributable to, in consequence of ionising radiation contamination by radioactivity from any nuclear fuel, weapon, medical isotope, waste other material whether occurring naturally otherwise, by the radioactive, toxic, explosive other hazardous properties of any nuclear assembly nuclear component thereof; 3.13 War based upon, attributable to, in consequence of war, invasion, acts of feign enemies, hostilities (whether war be declared not), civil war, rebellion, revolution, insurrection, military usurped power confiscation nationalisation requisition destruction of damage to property by under the der of any government public local authity; 3.14 Asbestos based upon, attributable to, in consequence of the existence of asbestos, other than a Claim f breach of professional duty in the conduct of the Business; 3.15 Directs and Officers Liability based upon, attributable to, in consequence of the Insured being a direct officer of a body cpate whilst acting in that capacity, except as me specifically provided under Automatic Extension 2.5; 3.16 Employers Liability based upon, attributable to, in consequence of the Insured s liability as an employer; 3.17 Mot / Marine based upon, attributable to, in consequence of the Insured s liability as the owner operat of any aircraft, marine craft mot vehicle of any kind; 3.18 Intentional Damage based upon, attributable to, in consequence of acts, errs omissions by the Insured with the intention of causing a third party loss, damage injury, with reckless disregard f the consequences; 3.19 Related Parties by in connection with any company, trust other legal entity: which is operated controlled by the Insured the Insured s Employees, nominees trustees; in which the Insured has a direct indirect financial interest. 4. CONDITIONS 4.1 Limit of Indemnity Subject to the application of Automatic Extension 2.1, the maximum liability of Suncp f any one Claim and in the aggregate f all Claims covered by this Policy (including Claims under any extension to this Policy) shall be the Limit of Indemnity, except that Suncp will in addition pay Defence Costs. 4.2 Excess (iv) The Insured shall bear the amount of the Excess in respect of each Claim made against the Insured and Suncp shall only be liable to indemnify the Insured in excess of that amount. If any Claim made against the Insured involves me than one alleged act, err omission, the Excess shall apply to each alleged act, err omission separately. In respect of any Claim where the amount of the Claim is less than the amount of the Excess, the Insured shall bear all costs and expenses associated therewith unless Suncp has agreed to meet such costs and expenses pursuant to Insuring Clause B. The Excess shall be exclusive of Defence Costs, except f Claims under Insuring Clause where the Excess shall be inclusive of Defence Costs. 4.3 Defence, Settlement and Mitigation (iv) (v) The Insured shall not admit liability (other than any statuty obligation to provide infmation) f settle any Claim, incur any costs assume any contractual obligations in respect of any Claim, without the written consent of Suncp. Suncp shall not be liable f any admission settlement costs to which it has not so consented. Suncp may take over and conduct the defence settlement of any Claim notified under Condition 4.4. If the Insured refuses to consent to any settlement recommended by Suncp and elects to continue to defend the Claim then (subject to the Limit of Indemnity) the liability of Suncp f that Claim shall not exceed the amount f which the Claim could have been settled, plus Defence Costs up to the date of such refusal, less the Excess. It shall be the duty and responsibility of the Insured to take all appropriate steps to defend any Claim, and, to provide such infmation and assistance to Suncp as it reasonably requires to investigate to defend any Claim to enable it to determine its liability under the Policy. Such infmation includes such data documentation necessary to establish and/ assert any right of contribution indemnification against any third party. The Insured shall use due diligence and do and concur in doing anything reasonably practicable to diminish avoid any legal liability Defence Costs in respect of which Suncp is could be liable to indemnify the Insured. Subject to Insuring Clause B, compliance with clauses 4.3 (iv) and (v) shall be at the Insured s own cost. PIBNAT 01/07/08 (Excl) Page 3

4 4.4 Notification of Claims The Insured shall provide to Suncp written notice of any Claim as soon as practicable and provide such infmation and assistance to Suncp as it reasonably requires including the nature of the allegations, the names of the claimants, and the manner in which the Insured first became aware of the Claim. Subject to Insuring Clause B, compliance with this clause 4.4 shall be at the Insured s own cost. 4.5 Seni Counsel Clause Suncp shall not require the Insured to contest any Claim unless a Queen s Counsel Seni Counsel (to be mutually agreed upon by the Insured and Suncp, failing agreement, to be appointed by the Chairman/President f the time being his nominee of the State Territy Bar Association referred to in Definition 5.2) shall advise that such Claim should be contested. In fmulating such advice, Queen s Counsel Seni Counsel shall take into consideration the economics of the matter, the damages and costs which are likely to be recovered by the plaintiff, the likely Defence Costs and the prospects of the Insured successfully defending the Claim. The cost of Queen s Counsel Seni Counsel s opinion shall be regarded as part of the Defence Costs. 4.6 Cancellation The Insured may not cancel this Policy. Suncp agrees it will not cancel this Policy f any reason other than non-payment of the Premium. 4.7 Payment of Premium The Insured must pay the Premium specified in the Certificate of Insurance f the Period of Insurance to Suncp by the due date specified in the Certificate of Insurance. If the Insured fails to pay the premium by the due date, Suncp is entitled to cancel this Policy in accdance with the Insurance Contracts Act Construction The titles of paragraphs in this Policy are included f descriptive purposes only and do not fm part of this Policy f the purposes of its construction interpretation. 4.9 Subrogation In respect of any Claim covered by this Policy, Suncp shall be subrogated to any rights of recovery, indemnity contribution which the Insured may have in respect of such Claim and the Insured shall do everything necessary to secure and preserve such rights, including execution of such documents necessary to enable Suncp to effectively pursue such rights Governing Law This Policy shall be construed, and any dispute in respect of this Policy shall be determined, in accdance with the laws of the Commonwealth of Australia and the Australian State Australian Territy where the Policy was issued. Any disputes relating to this Policy shall be submitted to the exclusive jurisdiction of the courts of Australia Territy The indemnity provided by this Policy shall be in respect of acts, errs omissions committed anywhere in the wld but shall not include: any Claim made in, determined pursuant to the law of, based upon the law of, the United States of America the Dominion of Canada their territies protectates; any Claim arising out of the enfcement of judgements, ders awards obtained within, determined pursuant to the law of, the United States of America the Dominion of Canada their territies protectates Validity To be valid, this Policy must have a current Suncp Certificate of Insurance Cease to Practice The Insured shall provide to Suncp, as soon as practicable: written notification of ceasing Business; and written notification of the Insured ceasing to be the holder of a practicing certificate the Insured s name being removed from the role of barristers Non-Repudiation, Avoidance Reduction of Liability Suncp shall not exercise any rights under sub-section 28(3) of the Insurance Contracts Act unless the Insured s non-disclosure misrepresentation is fraudulent Address f Notification Any matter required by this Policy to be notified, advised repted to Suncp shall be in writing and delivered to: 5. DEFINITIONS Suncp Metway Insurance Limited, Suncp Professional Risks, Attention: Underwriting Manager, Lvl 12, Cnr Albert & Turbot Sts BRISBANE QLD The following wds shall have the same special meaning throughout this Policy, whether expressed in the singular plural. If a wd has a special meaning, it will appear in the Policy in bold type and with a capital letter. 5.1 Act Act means the Legal Profession Act 2006 (ACT), Legal Profession Act 2004 (NSW), Legal Profession Act 2004 (QLD), the Legal Profession Act 2004 (VIC), the Legal Profession Act 1993 (Tas), similar legislation regulating the Business enacted by any State Territy of the Commonwealth of Australia, including any subsequent legislation which operates in lieu of the Act. 5.2 Barristers Professional Indemnity Scheme Barristers Professional Indemnity Scheme means the scheme offered to the State Territy Bar Association specified in the Certificate of Insurance and under which this Policy was issued. 5.3 Bodily Injury Bodily Injury means physical bodily injury, sickness, death, disease any psychological psychiatric injury. 5.4 Business Business means the provision of professional services of a barrister, which are provided in the nmal course of carrying on the practice of a barrister in private practice. 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5 5.5 Certificate of Insurance Certificate of Insurance means the Suncp Certificate of Insurance, which attaches to and fms part of this Policy. 5.6 Claim Claim means any: demand made against the Insured by a third party; writ, summons, application other iginal legal arbitral proceedings, cross claim, counter claim issued against and served upon the Insured; complaint, dispute, charge threatened charge, investigation proceedings against the Insured pursuant to the Act. 5.7 Compensation Order Compensation Order means any der f monetary compensation made against the Insured pursuant to the Act, arising from conduct not otherwise subject to any Exclusion in this Policy. 5.8 Cost Order Cost Order means a cost der made against the Insured pursuant to the Act, arising from conduct not otherwise subject to any Exclusion in this Policy. 5.9 Defence Costs Defence Costs means the reasonable legal costs and associated charges and expenses (other than wages salaries fees of the Insured) incurred by Suncp with the pri written consent of Suncp (such consent not to be unreasonably withheld): in defending, investigating moniting any Claim in respect of which Suncp has confirmed indemnity elected to take over and conduct, related appeals; in connection with any Automatic Extension to this Policy Documents Documents means deeds, wills, agreements, maps, plans, books, letters, certificates, fms and documents of any nature whatsoever, whether written, printed reproduced by any method including computer printouts BUT DOES NOT MEAN bearer bonds coupons, stamps, bank currency notes, any negotiable instrument, any fm of computer recds computer memy whether programmes, software otherwise and however recded Employee Employee means any barrister s clerk the services of whom are utilised by the Insured and any person employed under a contract of service, during pri to commencement of the Period of Insurance Excess Excess means: in respect of Insuring Clause and the Automatic Extensions (except Automatic Extension 2.2), the amount specified in the Certificate of Insurance; and in respect of Insuring Clause 1.1.2, the amount of $10,000 the amount specified in the Certificate of Insurance whichever is the greater. The Excess amount under Definition 5.12 shall be inclusive of Defence Costs Insured Insured means the person specified as the Insured in the Certificate of Insurance and who is the holder of a practising certificate and whose name has been entered on the role of barristers has otherwise bound themself in writing to adhere to the Barrister Rules issued by the State Territy Bar Association referred to in Definition 5.2, at the time of effecting this Policy Limit of Indemnity Limit of Indemnity means the amount specified in the Certificate of Insurance and is inclusive of claimant s costs Period of Insurance Period of Insurance means the period specified in the Certificate of Insurance Policy Policy means: this Policy wding together with the Certificate of Insurance; and any Endsement(s) agreed to by Suncp either at inception during the Period of Insurance Pollutants Pollutants means: any solid, liquid, gaseous thermal irritant contaminant, including but not limited to smoke, vapour, soot, fumes, acids, alkalis, chemicals waste materials; any other air emission, odour, waste water, oil, oil products, infectious medical waste, asbestos asbestos products, any noise emission Premium Premium means the total amount specified in the Certificate of Insurance Retired Insured Retired Insured means the person specified as the Insured in the Certificate of Insurance if that person has during the Period of Insurance: ceased to conduct the Business; and ceased to be the holder of a practicing certificate issued by an Australian State Territy Bar Association; and not, as a result of disciplinary action: (a) been struck off; and/ (b) been removed from the roll of barristers; and/ (c) had his her practising certificate cancelled during the Period of Insurance unless that person has also subsequently been reinstated to the roll of barristers and/ had their practising certificate reinstated during the Period of Insurance Retirement Date Retirement Date means the date from which the Retired Insured has ceased to conduct the Business and ceased to be the holder of a practising certificate issued by an Australian State Territy Bar Association Retroactive Date Retroactive Date means the date specified in the Certificate of Insurance Statuty Proceedings Statuty Proceedings means any investigation of the Insured by an individual professional body which has jurisdiction under the Act to supervise, inquire, investigate in relation to the Insured s conduct as a barrister suitability to practice as a barrister; any proceedings of a disciplinary nature against the Insured befe a tribunal, court other body which has jurisdiction under the Act to hear proceedings of that type against a barrister Suncp Suncp means Suncp Metway Insurance Limited ABN General Insurance Code of Practice We suppt and adhere to the General Insurance Code of Practice. A copy of the Code can be obtained from the Insurance Council of Australia by: - visiting by phoning (02) Insurance is provided by Suncp Metway Insurance Limited ABN ( SMIL ). Suncp-Metway Ltd ABN and its related companies (except SMIL) do not guarantee SMIL and are not liable under any insurance policies issued and services provided by SMIL. PIBNAT 01/07/08 (Excl) Page 5