In this fifth in the series of our monthly Practical Guides for Claims Managers in 2022, we consider certain key principles associated with certain terms that are commonly used in commercial insurance contracts, including warranties, conditions precedent and also ‘mere’ (or ‘bare’) conditions1. The legal consequences of non-compliance with each of these types of term differ significantly.
Claims Managers are therefore advised to be aware of how such terms are treated by the courts, including the potential remedies available in the event of any qualifying breach. We review examples of these typical policy terms below. We also address the abolition of ‘basis of contract’ clauses in non-consumer insurance contracts effected by the Insurance Act 20152 (the Act).
The effect of the Insurance Act 2015
The Act introduced significant changes to the legal effect of certain terms in insurance (and reinsurance) contracts. This followed the Law Commission’s view that certain aspects of insurance law had become outdated since the Marine Insurance Act 1906 (the MIA) was passed almost 120 years ago.
The Law Commission’s view had been that, prior to the Act, certain key insurance contract terms operated to favour insurers over policyholders. For policies entered into on or after 12 August 2016 (including renewals, amendments and endorsements to policies entered into before 12 August 2016) the Act has materially impacted the meaning and effect of certain key terms3.
Although several commentators predicted that a wave of policyholder/insurer litigation was likely to follow in the wake of the Act, that has so far failed to materialise. Insurers should nonetheless stay alive to future judicial decisions relating to policy terms and conditions, given that many of the issues that we touch upon in this article would benefit from further consideration by the courts.
Of course, whilst investigating a claim, insurers remain entitled to reserve their rights, subject to the provisions of the Act and the law more generally. We considered the topic of (p)reserving rights in detail in our third edition of this series.
The different types of policy terms
‘Basis of contract’ clauses
Under section 9 of the Act (Warranties and Representations), the use of ‘basis of contract’ clauses has been abolished, and the parties are not entitled to contract out of section 9. Under the previous regime, a pre-contractual statement could be converted into a warranty by using ‘basis of contract’ language. These clauses were frequently used by insurers to turn all of the answers in the proposal form into warranties, with the effect that any inaccuracy in the proposal form would discharge insurers from all liability under the policy from inception.
For contracts that come within the scope of the Act, the position now is that any representation made by the policyholder in connection with a “proposed” policy is no longer capable of being converted into a warranty by means of any term in either the policy, or the proposal.
Warranties
The MIA (which remains good law save where its provisions are substituted or amended by the Act) defines a ‘warranty’ as a term “by which the assured undertakes that some particular thing shall or shall not be done, or that some condition shall be fulfilled, or whereby he affirms or negates the existence of a particular state of facts”. The Act has not re-defined a warranty. In other words, it remains an undertaking by the policyholder that something will – or will not – be done, or that a particular state of affairs does – or does not – exist.
Prior to the changes effected by the Act, if a policyholder breached a warranty, this automatically terminated the policy, regardless of whether the breach gave rise to any loss or prejudice to the insurer. The insurer’s liability under the policy was discharged with immediate effect, and there was no recourse available to the policyholder whereby they were entitled to remedy that breach4.
Following the Law Commission’s review, it was recommended that a breach of warranty should be capable of being remedied by a policyholder. As a result, the law has been softened by the Act with the effect that – if the policyholder takes appropriate steps to remedy the breach – then a breach of warranty no longer automatically discharges insurers’ liability. Instead, a breach merely suspends insurers’ liability unless and until it is remedied by the policyholder5.
In summary, the Act has resulted in the following key changes:
Insurers have no liability in respect of any loss occurring or attributable to something happening whilst the policyholder remains in breach of a warranty.
Any breach will be taken as remedied either when the policyholder ceases to be in breach, or if the risk becomes the same as was originally contemplated by the parties.
Where the breach is remedied before the loss is suffered, insurers must pay the claim, subject to any other relevant policy terms.
For example, if the policyholder warrants that it has a working burglar alarm, the insurer will not be on risk during the period for which that undertaking is not being fulfilled because the alarm has, say, stopped working, but they will be back on risk once the alarm has been repaired. If the policyholder is in breach of a warranty to take a particular step by a particular time, it will have remedied the breach for the purposes of the Act once the step is taken6. A warranty may also be subject to section 11 of the Act (Terms not relevant to the actual loss), which we consider below.
It is important to note that insurers will not have a remedy for breach of a warranty in the following circumstances:
The warranty ceases to be applicable due to a change in circumstances.
If compliance with the warranty is rendered unlawful by subsequent law.
The insurer waives the breach7.
What amounts to a change of circumstances is yet to be tested before the courts and therefore remains an open question.
‘Mere’ conditions -v- conditions precedent
Conditions can be sub-categorised into ‘conditions precedent’ and ‘mere’ (or ‘bare’) conditions. English law has traditionally regarded a breach of a ‘condition precedent’ in a policy as meriting very different consequences compared with breach of a ‘mere’ condition.
‘Mere’ (or bare) conditions
A policy will typically include many terms which are ‘mere’ conditions. These are commonly concerned with the policyholder’s conduct during the policy period. In the majority of circumstances, and indeed only where insurers can demonstrate that they have suffered prejudice, a breach of a ‘mere’ condition will only entitle insurers to compensation in damages to the extent that they can demonstrate they have suffered actionable loss as a result of the breach of the condition.
Conditions precedent
A policy may also contain different types of conditions precedent. One type which may be found is a condition precedent to the validity of the contract. In this case, the condition must be satisfied before the risk will incept or attach (eg an obligation to pay premium before the insurer goes on cover). A second and more frequent type of condition precedent is a condition precedent to the insurer’s liability under the policy, where the condition must be satisfied before the insurer is liable in respect of a claim. This latter type of condition precedent is often concerned with the claims process (e.g. notification of a claim within a specified time or in respect of the policyholder’s obligations of co-operation).
The attribution of condition precedent status to a policy term will depend on a number of factors, including whether:
A term is expressly labelled a condition precedent.
Any other terms are expressly labelled conditions precedent.
There is a general term making compliance with all conditions a condition precedent to liability (or words to that effect).
No single factor is determinative, and, in accordance with general principles applicable to contractual interpretation, the courts will construe the policy as a whole to determine the proper meaning of a particular clause in its broader contractual, factual and commercial context.
By way of example, in the case of Aspen Insurance UK Ltd & ors. v Pectel Ltd [2008] EWHC 2804 (Comm), which concerned a clause requiring notice of a claim, the court held that the term under consideration amounted to a condition precedent due to a general provision stating that insurers’ liability was conditional upon the observance of the terms and conditions of the insurance. The court held that by its very nature the commercial purpose of the notice provision (allowing the investigation of the claim) justified compliance being a condition precedent to insurers’ liability. In addition, the court held that it did not matter that the clause at issue did not expressly say that it was a condition precedent.
Remedies for breach of condition precedent
For policies that were entered into before 12 August 2016, in principle a policyholder’s failure to comply with a condition precedent automatically entitled the insurer to deny a claim entirely, irrespective of whether the breach of the condition precedent was in any way related to the loss or the claim.
For policies that were entered into since 12 August 2016, when the Act came into force, the position is now more nuanced, and potentially more uncertain. This is because of the effect of section 11 of the Act, which introduced new rules requiring, in certain cases, there to be a degree of relationship between the policyholder’s breach of a condition precedent, on the one hand, and the risk of loss as a result of the breach, on the other hand, before an insurer can deny a claim as a remedy for the breach.
Section 11 applies generally to terms which are not relevant to the actual loss, and so it can apply to warranties and conditions alike, and equally it applies regardless of whether the terms are is expressly stated in the policy or implied into it. The new rules under section 11 apply to terms where compliance with the term (whether a warranty or condition) would tend to reduce the risk of loss of a particular kind, or at a particular location, or at a particular time. These types of term are sometimes described as ‘risk mitigation terms’. An example would be the situation mentioned earlier, where a warranty requires the installation and maintenance of a burglar alarm on the insured premises. Such a warranty would tend to reduce the risk of loss, namely theft from the premises.
With regard to these types of ‘risk mitigation terms’, insurers cannot rely on breach of the term to exclude, limit or discharge their liability under the policy, where a loss has occurred if the non-compliance in question could not have increased the risk of the loss that actually occurred. Put simply, the breach of the term by the policyholder must be at least loosely relevant to the actual loss that happened for the insurer to be in a position to claim a remedy for the breach.
So, taking again the example of the warranty requiring the policyholder to maintain the burglar alarm, the insurer could not rely on the failure to maintain a functional burglar alarm to refuse a claim for loss due to a fire on the premises. Unless the malfunctioning burglar alarm actually caused or contributed to the fire, the policyholder’s failure to maintain the burglar alarm could not have increased the risk of the loss that actually occurred, namely the fire.
As mentioned above, only some degree of relationship between the breach and the loss is necessary. Indeed, the Law Commission had indicated that the connection required was intended to be something less than causal, but it is not certain how the courts will apply the wording of section 11 to different factual scenarios.
It is also important to bear in mind that section 11 does not apply if the term in question is not a ‘risk mitigation term’ in the sense described above, or if the term defines the risk as a whole. The Law Commission cited as an example of a term defining the risk as a whole the requirement that a property or vehicle should not be used for commercial purposes. It will often be necessary to look at the policy as a whole in order to determine whether a particular term is one that defines the risk as a whole, in which case section 11 would not apply to that term.
It seems unlikely that section 11 would apply to clauses such as claims conditions that are invoked following the loss, eg those requiring notice of a claim (so, for example, if a condition precedent to liability to give notice of the claim is not complied with, then insurers are likely to be entitled to deny the claim).
Contracting out
With limited exceptions, it is open to the parties to agree policy terms that contract out of provisions of the Act. The exceptions are that it is neither possible to contract out of the Act’s provisions that abolish ‘basis of contract’ clauses (discussed above) nor to contract out of the term implied into policies under section 13A of the Act, namely that insurers must pay claims within a reasonable time, to the extent that insurers’ breach of that obligation may be deliberate or reckless.
The enforceability of any permissible contracting out will depend upon whether insurers have satisfied the provisions relating to contracting out in section 16 of the Act, or whether they are otherwise constrained, for example by professional minimum terms.
In order to contract out of provisions of the Act, section 17 of the Act (The transparency requirements) stipulates that insurers must satisfy two hurdles to reflect the fact that they have indicated to the policyholder with appropriate transparency that the policy does not incorporate these provisions:
First, insurers should draw any disadvantageous term – ie that which is sought to be contracted out of pursuant to the Act – to the attention of the policyholder (unless the policyholder or its broker already had actual knowledge of the disadvantageous term).
Second, any such term should be drafted so that it is clear and unambiguous as to its effect on the policyholder8.
In determining whether the above requirements have been met, the characteristics of policyholders of the kind in question, and the circumstances of the policy in question, are to be taken into account.
Policy terms and what they mean for insurers: Practical takeaways
Here are our top tips for insurers to help with policy terms and what they mean:
Bear in mind that different terms in a policy can have different legal status – and different consequences in the event of breach. This can be the case regardless of how a particular term is labelled in the policy. Ask yourself: what is the intended effect of the provision under consideration?
In particular, a condition precedent to insurers’ liability need not be specifically labelled or described as such to be a condition precedent – the court will look at the entire clause in context to decide its meaning.
If the term is not a warranty or a condition precedent, insurers will not be able to decline or reduce a claim for breach of the term, unless the breach resulted in actionable loss on the part of the insurer – which can then be legally set off against the value of a claim.
If the term is a warranty, non-compliance with the term will entitle insurers to come off risk – unless and until the policyholder can remediate the non-compliance.
If the term is a condition precedent to liability, non-compliance with the term will entitle insurers to deny the claim in its entirety – unless the term is a ‘risk mitigation term’, ie compliance with the term would tend to reduce the risk of loss of a particular kind, or at a particular location, or at a particular time.
For ‘risk mitigation terms’, the section 11 rules apply, meaning the policyholder’s non-compliance with a particular term or terms must have increased the risk of loss of the kind that actually occurred before the insurer can rely on any breach to exclude, limit of discharge their liability under the policy, or deny a claim. Ask yourself: is the impact of section 11 nullified because it is a term that can be said to describe the risk as a whole?
Have insurers successfully contracted out of the provisions of the Act? This will require insurers to show they complied with the ‘transparency requirements’ at the time the policy was placed.
The legal effect of ‘basis of contract’ clauses in a proposal form or policy has been abolished – if you are considering a policy entered into after 12 August 2016, and you find a ‘basis of contract’ clause, do not try to rely upon it to decline a claim.
More than 40 trillion gallons of rain drenched the Southeast United States in the last week from Hurricane Helene and a run-of-the-mill rainstorm that sloshed in ahead of it — an unheard of amount of water that has stunned experts.
That’s enough to fill the Dallas Cowboys’ stadium 51,000 times, or Lake Tahoe just once. If it was concentrated just on the state of North Carolina that much water would be 3.5 feet deep (more than 1 meter). It’s enough to fill more than 60 million Olympic-size swimming pools.
“That’s an astronomical amount of precipitation,” said Ed Clark, head of the National Oceanic and Atmospheric Administration’s National Water Center in Tuscaloosa, Alabama. “I have not seen something in my 25 years of working at the weather service that is this geographically large of an extent and the sheer volume of water that fell from the sky.”
The flood damage from the rain is apocalyptic, meteorologists said. More than 100 people are dead, according to officials.
Private meteorologist Ryan Maue, a former NOAA chief scientist, calculated the amount of rain, using precipitation measurements made in 2.5-mile-by-2.5 mile grids as measured by satellites and ground observations. He came up with 40 trillion gallons through Sunday for the eastern United States, with 20 trillion gallons of that hitting just Georgia, Tennessee, the Carolinas and Florida from Hurricane Helene.
Clark did the calculations independently and said the 40 trillion gallon figure (151 trillion liters) is about right and, if anything, conservative. Maue said maybe 1 to 2 trillion more gallons of rain had fallen, much if it in Virginia, since his calculations.
Clark, who spends much of his work on issues of shrinking western water supplies, said to put the amount of rain in perspective, it’s more than twice the combined amount of water stored by two key Colorado River basin reservoirs: Lake Powell and Lake Mead.
Several meteorologists said this was a combination of two, maybe three storm systems. Before Helene struck, rain had fallen heavily for days because a low pressure system had “cut off” from the jet stream — which moves weather systems along west to east — and stalled over the Southeast. That funneled plenty of warm water from the Gulf of Mexico. And a storm that fell just short of named status parked along North Carolina’s Atlantic coast, dumping as much as 20 inches of rain, said North Carolina state climatologist Kathie Dello.
Then add Helene, one of the largest storms in the last couple decades and one that held plenty of rain because it was young and moved fast before it hit the Appalachians, said University of Albany hurricane expert Kristen Corbosiero.
“It was not just a perfect storm, but it was a combination of multiple storms that that led to the enormous amount of rain,” Maue said. “That collected at high elevation, we’re talking 3,000 to 6000 feet. And when you drop trillions of gallons on a mountain, that has to go down.”
The fact that these storms hit the mountains made everything worse, and not just because of runoff. The interaction between the mountains and the storm systems wrings more moisture out of the air, Clark, Maue and Corbosiero said.
North Carolina weather officials said their top measurement total was 31.33 inches in the tiny town of Busick. Mount Mitchell also got more than 2 feet of rainfall.
Before 2017’s Hurricane Harvey, “I said to our colleagues, you know, I never thought in my career that we would measure rainfall in feet,” Clark said. “And after Harvey, Florence, the more isolated events in eastern Kentucky, portions of South Dakota. We’re seeing events year in and year out where we are measuring rainfall in feet.”
Storms are getting wetter as the climate change s, said Corbosiero and Dello. A basic law of physics says the air holds nearly 4% more moisture for every degree Fahrenheit warmer (7% for every degree Celsius) and the world has warmed more than 2 degrees (1.2 degrees Celsius) since pre-industrial times.
Corbosiero said meteorologists are vigorously debating how much of Helene is due to worsening climate change and how much is random.
For Dello, the “fingerprints of climate change” were clear.
“We’ve seen tropical storm impacts in western North Carolina. But these storms are wetter and these storms are warmer. And there would have been a time when a tropical storm would have been heading toward North Carolina and would have caused some rain and some damage, but not apocalyptic destruction. ”
Associated Press climate and environmental coverage receives support from several private foundations. See more about AP’s climate initiative here. The AP is solely responsible for all content.
It’s a dinosaur that roamed Alberta’s badlands more than 70 million years ago, sporting a big, bumpy, bony head the size of a baby elephant.
On Wednesday, paleontologists near Grande Prairie pulled its 272-kilogram skull from the ground.
They call it “Big Sam.”
The adult Pachyrhinosaurus is the second plant-eating dinosaur to be unearthed from a dense bonebed belonging to a herd that died together on the edge of a valley that now sits 450 kilometres northwest of Edmonton.
It didn’t die alone.
“We have hundreds of juvenile bones in the bonebed, so we know that there are many babies and some adults among all of the big adults,” Emily Bamforth, a paleontologist with the nearby Philip J. Currie Dinosaur Museum, said in an interview on the way to the dig site.
She described the horned Pachyrhinosaurus as “the smaller, older cousin of the triceratops.”
“This species of dinosaur is endemic to the Grand Prairie area, so it’s found here and nowhere else in the world. They are … kind of about the size of an Indian elephant and a rhino,” she added.
The head alone, she said, is about the size of a baby elephant.
The discovery was a long time coming.
The bonebed was first discovered by a high school teacher out for a walk about 50 years ago. It took the teacher a decade to get anyone from southern Alberta to come to take a look.
“At the time, sort of in the ’70s and ’80s, paleontology in northern Alberta was virtually unknown,” said Bamforth.
When paleontogists eventually got to the site, Bamforth said, they learned “it’s actually one of the densest dinosaur bonebeds in North America.”
“It contains about 100 to 300 bones per square metre,” she said.
Paleontologists have been at the site sporadically ever since, combing through bones belonging to turtles, dinosaurs and lizards. Sixteen years ago, they discovered a large skull of an approximately 30-year-old Pachyrhinosaurus, which is now at the museum.
About a year ago, they found the second adult: Big Sam.
Bamforth said both dinosaurs are believed to have been the elders in the herd.
“Their distinguishing feature is that, instead of having a horn on their nose like a triceratops, they had this big, bony bump called a boss. And they have big, bony bumps over their eyes as well,” she said.
“It makes them look a little strange. It’s the one dinosaur that if you find it, it’s the only possible thing it can be.”
The genders of the two adults are unknown.
Bamforth said the extraction was difficult because Big Sam was intertwined in a cluster of about 300 other bones.
The skull was found upside down, “as if the animal was lying on its back,” but was well preserved, she said.
She said the excavation process involved putting plaster on the skull and wooden planks around if for stability. From there, it was lifted out — very carefully — with a crane, and was to be shipped on a trolley to the museum for study.
“I have extracted skulls in the past. This is probably the biggest one I’ve ever done though,” said Bamforth.
“It’s pretty exciting.”
This report by The Canadian Press was first published Sept. 25, 2024.
TEL AVIV, Israel (AP) — A rare Bronze-Era jar accidentally smashed by a 4-year-old visiting a museum was back on display Wednesday after restoration experts were able to carefully piece the artifact back together.
Last month, a family from northern Israel was visiting the museum when their youngest son tipped over the jar, which smashed into pieces.
Alex Geller, the boy’s father, said his son — the youngest of three — is exceptionally curious, and that the moment he heard the crash, “please let that not be my child” was the first thought that raced through his head.
The jar has been on display at the Hecht Museum in Haifa for 35 years. It was one of the only containers of its size and from that period still complete when it was discovered.
The Bronze Age jar is one of many artifacts exhibited out in the open, part of the Hecht Museum’s vision of letting visitors explore history without glass barriers, said Inbal Rivlin, the director of the museum, which is associated with Haifa University in northern Israel.
It was likely used to hold wine or oil, and dates back to between 2200 and 1500 B.C.
Rivlin and the museum decided to turn the moment, which captured international attention, into a teaching moment, inviting the Geller family back for a special visit and hands-on activity to illustrate the restoration process.
Rivlin added that the incident provided a welcome distraction from the ongoing war in Gaza. “Well, he’s just a kid. So I think that somehow it touches the heart of the people in Israel and around the world,“ said Rivlin.
Roee Shafir, a restoration expert at the museum, said the repairs would be fairly simple, as the pieces were from a single, complete jar. Archaeologists often face the more daunting task of sifting through piles of shards from multiple objects and trying to piece them together.
Experts used 3D technology, hi-resolution videos, and special glue to painstakingly reconstruct the large jar.
Less than two weeks after it broke, the jar went back on display at the museum. The gluing process left small hairline cracks, and a few pieces are missing, but the jar’s impressive size remains.
The only noticeable difference in the exhibit was a new sign reading “please don’t touch.”
