Tysa Company Ltd v Guardian General Insurance Ltd
| Jurisdiction | Trinidad & Tobago |
| Judge | Rajkumar, J. |
| Judgment Date | 10 April 2013 |
| Neutral Citation | TT 2013 HC 88 |
| Docket Number | C.V. No. 4349 of 2009 |
| Court | High Court (Trinidad and Tobago) |
| Date | 10 April 2013 |
High Court
Rajkumar, J.
C.V. No. 4349 of 2009
Mr. Garnet Mungalsingh instructed by Mr. R. Mungalsingh for the claimant.
Ms. Nadine Ratiram instructed by Ms. A. Narine for the defendant.
Insurance Law - Contract of insurance — Policy — Terms — Indemnity — Whether defendant entitled to deny liability under policy.
On November 19th 2009 the claimant instituted proceedings against the defendant seeking an indemnity under a policy of insurance in respect of property damage that occurred as a result of a fire on September 24th 2008.
The defendant refused to indemnify the claimant for loss arising out of the fire on the bases that:–
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(1) Proceedings were not instituted within Twelve (12) months of the fire; the fire occurred on the 24th day of September, 2008 and proceedings were commenced on the 19th day of November, 2009.
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(2) The claimant its servant and/or agent deliberately caused the fire;
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(3) The claim of the claimant is fraudulently exaggerated.
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i. a. Whether there is a contract of insurance between the claimant and the defendant in respect of the property at 90 Robert Hill, Siparia (“the insured property”) and if so,
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b. What constitutes the contract?
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ii. Whether Conditions 8 and 15 are terms of the contract of insurance between the claimant and the defendant.
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iii. Whether, as the action was filed more than 12 months after the fire, the defendant is entitled to deny liability under condition 15 of the policy
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iv. Whether the fire was deliberately set with the connivance of the claimant's directors, (thereby entitling the defendant to deny liability under Condition 8 of the policy)
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v. Whether the claimant submitted a fraudulently exaggerated claim, (thereby entitling the defendant to deny liability under Condition 8 of the policy)
I find that
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i. There was a contract of insurance between the claimant and the defendant.
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ii. The Contract of Insurance in force between the claimant and the defendant at the material time comprised the Policy Wording Code: GG-FIR-ATTIC-POL-05/07 and the New Business Schedule dated 29th July, 2008.
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iii. Conditions 8 and 15 are terms of that contract of insurance between the claimant and the defendant.
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iv. As the action was filed more than 12 months after the fire, the defendant is entitled to deny liability under condition 15 of the policy.
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v. The defendant has failed to prove that the fire was deliberately set with the connivance of the claimant's directors.
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vi. The defendant has failed to prove that the claimant submitted a fraudulently exaggerated claim.
a. The claimant's claim is dismissed.
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b. The claimant is to pay to the defendant 25% of the costs calculated on the prescribed costs basis for a claim in the amount of $2, 000, 000.00.
By Amended Claim Form and Statement of Case filed 27th May, 2010 the claimant claimed against the defendant, the sum of $2, 000, 000.00 being an indemnity for damages under a contract of insurance contained in or evidenced by a proposal submitted by the claimant to the defendant acting by its agent, Messrs. SDS Insurance Brokers Limited and the oral acceptance thereof and receipt of payment of the premium on the 6th June, 2008 with an effective date of acceptance of risk being the 11th July, 2008 by the defendant, (sic) in consideration of premiums paid to them by the claimant, the defendant insured the claimant against loss or damage by fire for the period 11th July, 2008 to 11th July, 2009 as follows, namely $2, 000, 000.00 on inter alia a private dwelling house situate at No. 90 Roberts Hill, Siparia.
The claimant claims that:–
By a contract of insurance contained in or evidenced by a proposal submitted by the claimant to the defendant acting by its agent Messrs. SDS Insurance Brokers Limited and the oral acceptance thereof and receipt of payment of the premium on the 6th June, 2008 with an effective date of acceptance of risk being the 11th July, 2008 made-by the defendant, in consideration of premiums paid to it by the claimant, the defendant insured the claimant against loss or damage by fire for the period 11th July, 2008 to 11th July, 2009 as follows $2, 000, 000.00 on inter-alia a private dwelling house situate at 90 Robert Hill, Siparia. (Paragraph 3 Amended Statement of Case)
This is admitted by the defendant in its Amended Defence filed on 1st July, 2010 at paragraph 4, save for the portions underlined above. The defendant therefore admits that there was a contract of insurance between it and the claimant by which the defendant insured the claimant against loss or damage by fire for the period 11th July, 2008 to 11th July, 2009 as follows $2, 000, 000.00 on inter alia a private dwelling house situate at 90 Robert Hill, Siparia.
It also admits at paragraph 8 that the proposal formed the basis for that contract of insurance but denies that the contract of insurance is contained in or evidenced by that proposal. It denies that the contract of insurance was created in the manner alleged by the claimant.
By its Amended Defence filed on 1st July, 2010 the defendant disputed the claimant's claim on the following grounds:
- That the statement of case disclosed no contract between the claimant and the defendant whatsoever: pg. 2, para. 3 of the Amended Defence. However the defendant could not seriously pursue this, as material was pleaded by the claimant which prima facie disclosed the elements of a contract, and in fact the defendant admitted at paragraph 4 of its amended defence that there was a contract of insurance. 2. That no admission was made that the claimant was interested in and/or had an insurable interest in the subject matter of the policy: pg.4, para. 11 of the Amended Defence. This was quietly abandoned at paragraph 103 of the defendant's written submissions. 3. That the fire which occurred at premises at 90 Robert Hill, Siparia on 24th September, 2008 was wilfully and deliberately caused by the servants or agents of the claimant and/or with the connivance and/or complicity of the claimant its servants and/ or agents and the claim in respect thereof under policy between the claimant and the defendant is fraudulent and that all benefit under the contract of insurance, and therefore the claim of the claimant, is forfeited and/or void as a result of the operation of Condition 8 of Contract of Insurance: pgs. 4 and 5, paras. 13(a) and 14 of Amended Defence. 4. That the claim or account of its loss made by the claimant is fraudulently exaggerated and that all benefit under the contract of insurance and therefore the claim of the claimant is forfeited and/ or void as a result of the operation of Condition 8 of Contract of Insurance: pgs. 4 and 5, paras. 13(b) and 14 of Amended Defence. 5. That the action herein was not commenced within 12 months of the loss or damage alleged and therefore the defendant is not liable to the claimant under the Contract of Insurance or at all pursuant to Condition 15 of the Contract of Insurance: pgs. 6 and 7, para. 19 of the Amended Defence.
The defendant submits that the Contract of Insurance No. TT FCP 0476228 on which it relies, (annexed as A to the Amended Defence), is the contract of insurance in force between the claimant and the defendant at the material time and that it comprises the Policy Wording Code:
GG-FIR-ATTIC-POL-05/07 and the New Business Schedule dated 29th July, 2008. (paragraph 5 of the Amended Defence)
a. Whether there is a contract of insurance between the claimant and the defendant in respect of the property at 90 Robert Hill, Siparia (“the insured property”) and if so, b. What constitutes the contract?
Although on the pleadings it is common ground between the claimant and the defendant that there was a contract of insurance, it was submitted on behalf of the defendant that:–a. The claimant has failed to prove its pleaded case against the defendant in that
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i. It failed to rebut the presumption that SDS Insurance Brokers was acting as agent of the claimant and;
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ii. That it failed to prove that the contract of insurance as pleaded is “contained in or evidenced by a proposal submitted by the claimant to the defendant acting by its agent Messrs. SDS Insurance Brokers Limited and the oral acceptance thereof and receipt of payment of the premium on the 6th June, 2008”.
It submitted that the claimant's case as pleaded discloses no reasonable cause of action against the defendant and ought to be struck out. This was amended in the defendant's submissions to “The claimant has failed to prove its pleaded case against the defendant and the claim ought therefore to be struck out as disclosing no reasonable cause of action.” This makes it clearer that the defendant is attempting to conflate two concepts - departure from pleadings, and disclosing no reasonable cause of action. Neither has any merit.
In fact it is common ground on the pleadings that there was a contract of insurance. Therefore it cannot be contended that there is no reasonable cause of action, as the cause of action is based on an indemnity under a contract of insurance between the claimant and the defendant.
There is an issue on the pleadings as to whether the contract of insurance as pleaded is “contained in or evidenced by a proposal submitted by the claimant to the defendant acting by its agent Messrs. SDS Insurance Brokers Limited and the oral acceptance thereof and receipt of payment of the premium on the 6th June, 2008”, or whether Guardian General Fire Policy wording code GG-FIR-ATTIC-POL- 05/07 and New Business Schedule dated 29th July, 2008 comprise...
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