Court of Appeal dismisses policyholders' Canterbury earthquake appeal

The Court of Appeal has dismissed an appeal by a policyholders in relation to their insurance claim against Lumley arising out of the Canterbury Earthquakes: Jarden v Lumley General Insurance (NZ) Ltd [2016] NZCA 193.A point of particular interest arises in the decision. The Court determined that Lumley's "top-up" cover to pay for damage caused by a natural disaster which was stated to be in excess of cover provided under the relevant provisions of the Earthquake Commission Act 1993 was for cover in excess of EQC's actual (statutory) liability. This is not always the same amount the EQC actually pays to policyholders, and was not in this case. Lumley was entitled to be satisfied that any sum paid by the EQC equated with its liability under the legislation (refer paragraph [26]).With regards to this issue, the Court accepted a submission from Lumley  that its cover and premiums are fixed on the basis of EQC’s actual statutory obligation and that it is not open for the policyholder to alter unilaterally the basis upon which Lumley’s liability arises under the policy (refer [27]).

Steve KeallBarrister23 May 2016

Recent case: Tower v Domenico [2015] NZCA 372

In a recent decision the NZ Court of Appeal allowed an appeal and set aside a decision of the High Court: Tower Insurance Ltd Domenico Trustee Ltd [2015] NZCA 372.Tower was the insurer and Domenico was the insured making a claim in respect of damage to a residential dwelling resulting from the 2010/ 2011 Canterbury earthquakes.One of the central issues for determination at the High Court trial before Gendall J was whether Tower had made a binding election to make a cash settlement to Domenico of the full reinstatement costs in resolution of Domenico's insurance claim.Gendall J found on the facts of the case that Tower had not made any such election. In describing the law, he stated that any exercise of a power of election must be made within a reasonable period of time, and further that if the election is not made within that time frame, the Court may make the election in substitution for the electing party. In this case, the relevant election was between the various settlement options open to Tower. Gendall J held that Tower had failed to make a relevant election within a reasonable period of time, and accordingly determined that the Court would do so, holding that Tower was liable to make immediate payment to Domenico of the indemnity value of the property.At the appeal hearing, counsel for Tower, who was also trial counsel, noted that at trial he elected not to call any evidence at the conclusion of Domenico's case in reliance on the pleadings.  He stated that if election through delay had been pleaded he would have led evidence on the subject.The Court of Appeal held that  election through delay was not open on the pleadings and was not raised in argument. The Court stated that if the Judge was contemplating a finding that was outside the pleadings and argument, he ought to have given the opportunity to both sides to address the issue and to seek an amendment to the pleadings. This being the case, the Court allowed the appeal and set aside the High Court's judgment.The Court stated that "the proceeding is remitted to the High Court for rehearing in light of the judgment of this Court" (emphasis added). This rider would appear to indicate that that only the issue of the alleged delay needs to be adjudicated, with the required related procedural steps also taking place, such as the formal pleading of the argument in a statement of claim, a response in a statement of defence and the exchange of evidence in relation to this issue.At the hearing, no doubt counsel for Tower will also have something to say about Gendall J's analysis of the law as described above. It is questionable whether it is correct to say that a Court may make an election for a party where it has failed to do so. That said, it is undoubtedly the case that where a contracting party is required to make an election for the benefit of the other party, if the electing party simply fails to act, it will be in breach of the obligation to make that election. In assessing the consequences of that failure, the Court must decide what would have happened if that party had done what it ought to have done. It will make that decision based on the evidence before it. It would be wholly unsatisfactory for the relevant remedy to be for the Court to order the party to make an election (which seemed to be what the Court of Appeal indicated as a possibility in its judgment, without deciding it). Where delay is the problem, that would only postpone the problem further. The Court's customary approach to problems of this kind is to make a conclusive determination that leads to a final resolution of all issues.

Steve KeallBarrister12 September 2015

1 minute case summary: Medical Assurance Society of New Zealand v East [2015] NZCA 250

Medical Assurance Society of New Zealand v East [2015] NZCA 250(Unanimously by Harrison, Keane and Wylie JJ)Nature of case: Insurance/ Canterbury earthquakes/ Appeal from the High Court, which made certain declarations sought by the insured based on construction of an insurance policy.Facts: The Easts’ dwelling, insured by the Society, was damaged in the 2011 Christchurch earthquake. The insured elected to rebuild/restore the property, instead of opting for indemnity value. The parties agreed that the insurer was liable for the cost of rebuilding/restoring the property, but disagreed as to the nature and scope of the insurer’s liability.The relevant provision in the insurance policy stated:

…the Society will cover the cost of rebuilding or restoring the dwelling to a condition substantially the same as new, so far as modern materials allow, and including any additional costs which may be necessary to comply with any statutory requirements or Territorial Authority by-laws...

Issues: (1) Whether the insurer’s liability is to cover cost actually or about to be incurred by the insured in rebuilding the property (which must be reasonable), or to pay a reasonable estimate of the cost of such rebuilding work before such cost is incurred by the insured. (2) Whether such cost is the cost of rebuilding the dwelling to the standard it was at when first built (in this case 2007), or to current Building Code standards (2015).Decision: (1) Insurer’s liability is to cover cost actually or about to be incurred, not an estimate of such ([20]-[21]). (2) Restoring the dwelling to “a condition substantially the same as new” means to a standard which satisfies current Building Code requirements [38].Reasons: in respect of holding (1) above: (i) the pragmatic difficulty in arriving at a satisfactory estimate. The insured’s own estimate of $3.096m here was seriously flawed ([22]-[23]); (ii) Contrary to the reasoning of the High Court, the interpretation of the clause given by the Court of Appeal does not impose a fetter on the insured’s entitlement under the policy ([25]); (iii) if any estimate proved to be in excess of the amount actually needed to rebuild/restore the property, there is no mechanism in the contract through which the insurer could claim back the surplus ([26]); (iv) the insurer is powerless in preventing any money, paid as an estimate of the cost, from being applied for other purposes ([27]). In respect of holding (2) above: (i) the phrase “as new” does not mean new at any particular time other than at the present ([38]); (ii) Council may not consent to restoration work based on an outdated Building Code. In that event the insurer cannot perform its obligation “to comply with any statutory requirements or Territorial Authority by-laws” [38].Orders: The High Court’s declaration to the contrary on issue 1 is set aside. The High Court’s declaration on issue 2 is affirmed. Dismissed: cross-appeal by the insured against High Court’s reservation of leave to settle quantum (if the insured’s claim ultimately fell for measure on a different basis from that proposed) ([41]-[42]). Dismissed: insured’s application for leave to adduce further evidence ([43]-[44]).Prepared with assistance from Ken Ng.

Steve KeallBarrister12 July 2015

High Court delivers ruling in EQ flood damage case

The full Court of the New Zealand High Court has delivered its decision in Earthquake Commission v Insurance Council of New Zealand & Ors [2014] NZHC 3138 (10 December 2014), finding that "natural disaster damage" includes increased flooding vulnerability and increased liquefaction vulnerability of residential land created by physical changes in the land caused by earthquakes (see paras [80, [93]).You can read a description of the case here.The Court's conclusion is of interest because it it includes taking into account the probability of something occurring - or not occuring - in the future. "Vulnerability" is, afterall, just another way of describing risk, specifically, a heightened risk of something happening. Diligent readers will be asking themselves: is this a million miles from Kraal v EQC [2014] NZHC 919? In Kraal, the homeowners unsuccessfully contended that the risk that  rocks on a cliff face above the property would dislodge and cause injury/ death and property damage brought them within the scope of the relevant legislation.The Court distinguished  Kraal on the basis that in Kraal the land was physically unchanged , whereas in the present case, the land was damaged (see [72], [73]). This is where, I say, the arguments become unsustainably metaphysical.  Does the fact that this thing we call land, not made by any person, has undergone some kind of change of state mean it is damaged? Counsel for the EQC submitted no, but the Court concluded yes, stating at [79]:

As a direct result of the earthquakes, there has been a disturbance to the physical integrity of the land, reducing it in volume and leaving the body of the land in a changed physical state. This changed physical state has resulted in the land being more vulnerable to flooding, thereby adversely affecting its use and amenity. The primary use of residential land is as a platform for building. Land that is materially more prone to flooding is plainly less suitable for this purpose and is less habitable. The criteria for physical loss or damage are satisfied.

The coupling of a "changed state" with increased vulnerability results in loss of use and amenity, the Court said, which is then equated to damage as it is understood by the legislation. This is not, I suggest, actual damage, but altered physicality, of some kind, which has increased the risk of something happening (and conversely  something not happening). It is the potential loss of amenity that permits the Court to conclude it amounts to damage. This is an elegant dance. If it is accepted that it is correct, then surely it follows that the homeowners in Kraal can be taken through the same waltz? Substitute the word "rock fall" for "flooding" in the penultimate sentence above and you will catch my drift. And I suggest it is not a continental sized drift, just a little one that would appear to serve the interests of justice for all affected homeowners.I suggest that if the Court's decision in this case is correct, then the High Court's decision in Kraal should be treated as incorrect. The distinction between them is just too fine.The Court of Appeal hearing for Kraal occurred a little while ago. It will be interesting to see if the Court is influenced by these kinds of arguments in its decision.

Steve Keall14 December 2014

NZ Supreme Court news: Canterbury earthquake cases

It is understood that Skyward Aviation 2008 Ltd v Tower Insurance Ltd is being heard in the Supreme Court tomorrow (Wednesday 5 November 2014). To refresh your memory, I wrote about the Court of Appeal case here. You can read the Court of Appeal decision here.In other news, a review of the "Case Summaries" list on the Supreme Court website shows that applications for leave to appeal have been filed in the Supreme court respect of QBE Insurance (International) Limited v Wild South Holdings Limited and Maxims Fashions Limited (SC 106/ 2014) and Certain Underwriters at Lloyds of London and Sirius International Insurance Group Limited v Crystal Imports Limited (SC 107/ 2014); two of the three "conjoined" proceedings dealt with in the Court of Appeal in QBE Insurance (International) Limited v Wild South Holdings Limited [2014] NZCA 447 (10 September 2014) which I mentioned briefly here after the decision was delivered. Noticeably absent from this line up is the third of the three proceedings; Marriott v Vero Insurance New Zealand Ltd. One assumes that the insurer in this latter case was content not to push the issues further.In further news, it is understood that the insurer has filed an application for leave to appeal to the Supreme Court in Avonside v Southern Response, which I wrote about here. One has to wonder about the utility of New Zealand's highest Court potentially opining on specific line items in a replacement cost analysis, and as it relates to a "notional" rebuild only. Of course, only the insurer knows how many properties fall into that category. The bench addressing the leave application will need to decide what number of affected dwellings makes it a truly significant case, in the circumstances. One would have thought that would have to be a very high number.

Steve KeallBarrister4 November 2014

NZ Court of Appeals delivers judgment in conjoined Canterbury earthquakes appeal

Here it is: QBE Insurance (International) Limited v Wild South Holdings Limited [2014] NZCA 447 (10 September 2014).It will only take one of the six parties to apply to the Supreme Court for leave to appeal, in which case all of the others are likely to be involved as well. That being the case, a Supreme Court hearing on all of the issues seems to be highly likely.

Steve Keall11 September 2014

Will Ridgecrest v IAG analysis impact on automatic reinstatement cases?

Some interesting analysis of the NZ Supreme Court's recent decision in Ridgecrest v IAG can be found in this recent Bell Gully article.In the policy in question in Ridgecrest v IAG, there was a per "happening" (ie event) limit of liability. The Supreme Court held that the policyholder holder could claim up to this full limit for each event, subject to the proviso that it could not claim in respect of the same damage twice by dint of the indemnity principle.In contrast to the IAG/ Ridgecrest provision, many relevant material damage policies instead have an aggregate limit for all damage caused by all events during the policy period. On the face of it, this may suggest the Ridgecrest reasoning can be confined. However, these latter policies also tend to contain a provision reinstating the limit after each loss. The authors note that various High Court cases, the subject of a recent conjoined appeal to the Court of Appeal (Wild South Holdings Ltd v QBE Ltd, Maxims Fashions Ltd v QBE Ltd, Marriott v Vero Insurance Ltd and Crystal Imports Ltd v Certain Underwriters at Lloyd’s of London & Anor, 5 August 2014, in respect of which it is understood a decision is still awaited) have held that  these reinstatement provisions mean that a policyholder is able to claim a sum in excess of the stipulated aggregate limit if there are multiple losses during the policy period.The authors state:

It remains to be seen whether the courts will apply the Supreme Court’s analysis of the Ridgecrest policy to material damage policies with aggregate limits and automatic reinstatement clauses. If so, the Ridgecrest decision will be of much broader significance in interpreting and applying material damage policies.

This is an interesting question, and it is suggested the initial answer will lie in the Court of Appeal's anticipated decision mentioned above. Presumably the learned judges will take into account the Supreme Court's decision in Ridgecrest while preparing their judgment. Watch this space.

Steve Keall8 September 2014

NZ Supreme Court rejects doctrine of merger in successive losses EQ case

The New Zealand Supreme Court has delivered its decision in Ridgecrest NZ Ltd v IAG New Zealand Ltd [2014]  NZSC 117 (27 August 2014, delivered by William Young J), holding, amongst other things, that the doctrine of merger does not apply to successive earthquake losses.The doctrine of merger is a marine law concept recorded in s 77 of the Marine Insurance Act 1908 which states:

Successive losses(1) Unless the policy otherwise provides, and subject to the provisions of this Act, the insurer is liable for successive losses, even though the total amount of such losses may exceed the sum insured.(2) Where under the same policy a partial loss which has not been repaired or otherwise made good is followed by a total loss, the assured can only recover in respect of the total loss.…

In the present case, the insurer, IAG, contended that that the marine insurance principles should apply with the result that Ridgecrest’s partial loss claims in respect of earlier earthquakes were merged in the total loss claim resulting from the final earthquake.The Supreme Court determined that there were a number of differences between the policy in question in this case to the marine insurance policies in issue in the merger cases considered:(a) The policy provided for both indemnity and replacement cover. It wastherefore possible for an insured to make a profit, in the sense of recovering (on a replacement basis) more than the actual (that is the indemnity) value of the building;(b) The policy did not operate on the basis of a loss assessed at the end of the risk period. Rather, it applied happening by happening;(c) Under the relevant operative provision, clause C1, the insurer was required to pay before any repairs were effected and the liability to pay was unaffected even if such repairs were not effected;(d) A cause of action in respect of the losses caused by each of the earlier earthquakes accrued immediately;(e) The liability limit is reset after each happening.In the conclusion section of the judgment, the Supreme Court noted that the rights of Ridgecrest under its policy with IAG were subject to three limits:

• There could be no double counting;
• Each happening gave rise to a separate limit in respect of which the contractual limit of $1,984,000 applied;
• The total of all claims could not exceed the replacement cost of the building.

CommentThis brief note makes reference to the merger issue and concluding remarks of the decision only, a longer note will follow later which examines the entire judgment. In the meantime, it is refreshing to see the Court overtly acknowledge that "replacement" insurance - sometimes known as "new for old" - may in fact create what may be characterised as a windfall, or profit, to the policyholder.  Replacement insurance does not offer indemnity, if offers something more. 

Steve Keall

NZ Supreme Court grants leave to hear Canterbury earthquake appeal

The New Zealand Supreme Court has granted leave to Tower Insurance to appeal the Court of Appeal's adverse judgment against it: Tower Insurance Ltd v Skyward Aviation 2008 Ltd [2014] NZSC 93.We provided commentary on the Court of Appeal's judgment in an earlier edition of nzinsurance law: read it here. Or alternatively listen to it on your smartphone while driving by following this link. We have received constructive feedback on this podcast; your correspondent's vocal manner being described as either robotic or monotonous. Your correspondent is investigating the cost and utility of vocal coaching.On a more serious note, we earlier noted that, in its reasoning, the Court of Appeal referred to the policyholder's ownership interest, which included a "legitimate interest" in retaining a neighbourhood link to the existing location of the property, in contrast to the insurer's "strictly economic" interest. The suggestion that, in an insurance policy, language must be unequivocal in order to leave unaddressed a policyholder's legitimate interest in the property was a very interesting one and will most likely be the focus of some attention in the Supreme Court hearing.

Steve Keall23 July 2014

NZ High Court says deprivation of property is not "damage" in Canterbury earthquake litigation

Today the High Court delivered a result judgment holding that a notice issued pursuant to section 124 of the Building Act 2004, where there was considered to be a direct and continuing threat of further physical damage from certain rockfall hazards which deprived the plaintiffs of the possession of their residential dwelling, constituted neither "natural disaster damage" for the purposes of the Earthquake Commission Act 1993, nor "damage" for the purposes of the relevant insurance policy: Kraal v The Earthquake Commission and Allianz New Zealand Ltd [2014] NZHC 866 (Mallon J).Mallon J said detailed reasons would be provided later.

NZ Court of Appeal rules against insurer in Canterbury Earthquake case

The Court of Appeal has ruled against an insurer in a Canterbury earthquake case: Skyward Aviation 2008 Limited v Tower Insurance Limited [2014] NZCA 76 (Randerson, Harrison and Miller JJ, 20 March 2014, judgment delivered by Harrison J).

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Summary

The Court of Appeal has held that on a proper construction of "basis of settlement" provisions contained in the insurance policy in issue, the policyholder had the right to decide whether to rebuild or repair on site, or to rebuild elsewhere, or to buy another house, once it had been established that the house was not economically repairable. It reached this decision with reference to, amongst other things, the policyholder's ownership interest and specifically its "legitimate interest" in remaining in its chosen neighbourhood. The Court also held that if the policyholder purchased another house, the insurer was bound to pay the cost of that house up to the cost which the policyholder would notionally incur in repairing its existing house to the same condition and extent as and when new and up to the same area as shown in the certificate of insurance. On the evidence, these notional repair costs were significantly in excess of the market value of the existing dwelling, which on the face of it conferred a significant financial advantage on the policyholder, although not, the Court said, in breach of the indemnity principle.

Background

The policyholder company, Skyward, purchased a residential dwelling in Christchurch in 2009 for $450,000. Skyward insured the property with Tower, an insurer, under a full replacement value policy. The certificate of insurance did not state a sum insured, providing instead that the house was insured for its full replacement value based its surface area.

The  property was badly damaged in the 2010/ 2011 Canterbury earthquakes. It was situated within a statutory area called the "Red Zone" where repair of any property was uneconomic.

The insured subsequently elected to sell the land to a government agency known as the Canterbury Earthquake Recovery Authority ("CERA") for $291,000. The insured also received its maximum statutory entitlement from the Earthquake Commission ($100,000 plus GST), and an interim payment of approximately $165,000 from Tower. This interim payment was for the house damage based on the cost of purchasing a comparable house elsewhere (taking into account payments from all sources), without prejudice to Skyward’s right to claim more.

The dispute

The insured and insurer could not agree on the measure of the insured loss under the policy.

Tower contended that it had the right to choose from a number of settlement options under the policy. Specifically, it was obliged to pay only the fair price of a replacement house elsewhere of comparable size, construction and condition as the insured's dwelling was when it was new. It said that the pre-earthquake market value of the property was $492,000.00, divided between land at $275,000.00 and house and chattels at $217,000.00. It said that Skyward could buy a similar house (excluding the land) for $365,000.00. The combined payments from the EQC and Tower provided sufficient funding for this cost to be paid, thus satisfying Tower's obligations under the policy.

The insured contended that it was entitled to payment of an amount equal to the estimated costs of rebuilding or repairing its house on the land.  Skyward said that the house could be repaired on the site at a cost of $682,525.00 or rebuilt elsewhere to regulatory standards for $770,960.00.

Accordingly, there was a difference of about $300,000 in the parties' calculations of the relevant measure of loss.

The issues to be determined

The parties remitted the following questions to the Court for determination in this context (paraphrased):

1. How was the amount payable by Tower to be calculated if an insured party’s claim was to be settled by Tower paying the cost of buying another house;
2. Was it Tower’s choice whether the claim was to be settled by paying the cost of buying another house or, if Tower settled by making payment, whether it is to be made based on the cost of rebuilding, replacing or repairing the house; and
3. In the circumstances, did Tower make an irrevocable election to settle Skyward’s claim by making payment based on the full replacement value?

It is worth noting that the Court of Appeal dealt with the second question first, then the first question, and regarded the third question as irrelevant in light of its answers to the first and second questions.The policy wordingThe relevant provisions of the policy stated:"HOW WE WILL SETTLE YOUR CLAIMWe will arrange for the repair, replacement or payment for the loss, once your claim has been accepted.We will pay:the full replacement value of your house at the situation; orthe full replacement value of your house on another site you choose. This cost must not be greater than rebuilding your house at the situation; orthe cost of buying another house, including necessary legal and associated fees. This cost must not be greater than rebuilding your house on its present site; or the present day value; as shown in the certificate of insurance.We will only allow you to rebuild on another site or buy a house if your house is damaged beyond economic repair." (emphasis added)"Full replacement value means the costs actually incurred to rebuild, replace or repair your house to the same condition and extent as when new and up to the same area as shown in the certificate of insurance, plus any decks, undeveloped basements, carports and detached domestic outbuildings, with no limit to the sum insured.""Present day value means the cost at the time of the loss or damage of rebuilding, replacing or repairing your house to a condition no better than new and up to the same area as shown in the certificate of insurance, plus any decks, undeveloped basements, carports and detached domestic outbuildings, less an appropriate allowance for depreciation and deferred maintenance, but limited to the market value of the property less the value of the land as an unoccupied site."The basis of settlement provisions also contained this statement: "in all cases: ... we have the option whether to make payment, rebuild, replace or repair your house."The basis of settlement issueThe Court of Appeal stated that the relevant provisions of the policy effectively provided for four different alternative bases for settlement, which were:

1. The full replacement value of Skyward’s house at its current location. That meant the costs actually incurred in rebuilding, replacing or repairing the house to the same condition and extent as and when new and up to the same area as shown in the certificate of insurance;
2. The full replacement value of the house at another site chosen by Skyward, providing the cost was no more than the cost of rebuilding the house on its existing site;
3. The cost of buying another house. This alternative is subject only to the same limitation as the first two alternatives – the cost must not be greater than the cost of rebuilding the house on its existing site;
4. The present day value, which was defined as the cost of repair or replacement, less depreciation, but limited always to the market value of the house when damaged less land value.

It was not disputed that Tower was not bound to pay anything more than "present day value" until Skyward incurred the cost of reinstatement, rebuilding or replacement. Having identified the various alternatives, the Court then recast the primary question as who had the ability to decide which basis of settlement was to be applied. It noted that the High Court had ultimately determined that the provision "in all cases: ... we [Tower] have the option whether to make payment, rebuild, replace or repair your house" was decisive. The High Court had stated at paragraph 68 of its judgment:

"Tower has the choice, therefore, of whether to make a payment, or rebuild, replace or repair. It follows that Tower, in making the payment, can choose the basis of payment. That basis must be on a repair, rebuild or replacement basis, and if repair is not an option, which I have found it is not, Tower can choose between rebuild and replacement."

The Court of Appeal interpreted the different basis of settlement provisions, read together, as containing language which gave the relevant decision to the policyholder, with reference to the following:

1. Tower reserved the right to pay only present day value “if you [the policyholder] choose not to build or repair your house, (the first alternative) or buy another house (the third alternative);
2. Tower reserved the right to disallow Skyward from either building on another site (the second alternative) or buying a house (the third alternative), if the existing house was not damaged beyond economic repair. This right of veto could only be exercised once Skyward had made the underlying choice. In other words, it assumed that Skyward was generally at liberty to make the choice, then restricted the company’s ability to choose options two or three to the case where the existing house is not economically repairable (emphasis added);
3. The second alternative provided for full replacement value of the house “on another site you [the insured] choose” – that is, it is the insured’s right to choose. (underlining added)

The Court of Appeal related these provisions to the parties' respective interests in the property: the policyholder had an ownership interest and the insurer had only a "strictly economic interest." The Court made a number of observations about these respective interests including that  once the insurer must pay the full measure of loss "it should be indifferent to the policyholder’s decision about how to reinstate the property" (paragraph 23). It then stated at paragraph 24:

"In our judgment these provisions must prevail over the statement in the basis of settlement provision that in all cases Tower has the option to make payment, rebuild, replace or repair the house. While accepting that the policy allows Tower to insist on repair in certain situations, we do not accept that it allows Tower to control what happens in every case. If it did, as Mr Campbell observed, Tower might choose to pay on a present value basis, that being one of the settlement options, notwithstanding that the policyholder wished to reinstate or replace the house."

The Court of Appeal said that the policy worked this way:  if the policyholder did not pursue full replacement by repair, rebuilding or replacing, Tower was bound only to pay the "present day value" as defined. If the policyholder wished to repair, rebuild or replace to full replacement value, Tower’s rights depended on whether the house was economically repairable. If it was, Tower would be able to insist on repair or rebuilding on the same site. Further, Tower would be able to commission the work. If the house was not economically repairable, then the policyholder could decide whether to repair or rebuild on the existing site, or rebuild elsewhere, or buy another house. But in every such case Tower needed only pay the cost of rebuilding on the existing site. The Court of Appeal recorded the insurer's submissions the contrary. Counsel for the insurer appears to have made a submission based on the inconsistency between the insurer have the choice between whether to reinstate or pay and for the policyholder to be given the choice between alternative bases for payment. The Court stated that it perceived no inconsistency in allowing the insured party to choose where the measure is effectively the same. It stated at paragraph 29:

"Once it is established as a matter of fact that the house is not economically repairable, Tower has no continuing interest in whether the insured party rebuilds on the existing site, rebuilds on another site or buys a house elsewhere, subject only to the insured actually incurring replacement cost, and further to the agreed financial limits."

So, it framed this submission in the context of the interests analysis referred to earlier. Counsel for the insurer submitted that Tower’s choice of the basis of payment was also confirmed by the limitation on Skyward rebuilding on another site or buying a house only if the existing house is damaged beyond economic repair. No purpose would be served by this clause, he submitted, if the choice between the bases of payment was for the insured. Its true purpose was to give Skyward fair notice of how Tower intended to exercise its choice, and the concept of Tower allowing the insurer to rebuild on another site or buy a house implicitly recognised Tower’s choice whether this will be done. The Court rejected this submission. It stated at paragraph 31:

"This construction of the proviso contradicts its plain language, and we reject it. Its purpose is to impose a limitation on the nature and scope of the insured’s underlying right to choose between alternatives, allowing the insurer to restrict the extent of its liability. It cannot be construed as a notice provision."

The Court of Appeal judgment records Counsel for the insurer as having submitted that in this case, by accepted the policy framed in the way that it was, the parties had effectively agreed that Tower's economic interests should prevail over the insured's interest in being able to rebuild or buy another house in a location where it retains neighbourhood links. This would be mitigated, he submitted, by the insurer acting reasonably to agree an amicable settlement with the policyholder. It would only choose the third alternative as a last resort. The Court of Appeal did not accept this submission. Amongst other things, it said that taken to its extreme, an insurer could require a policyholder to move to another city. The Court stated at paragraph 38:

"The words should not be construed to reach that extreme result and deny an insured party’s legitimate interest unless the words point unequivocally to that result. The insured party’s legitimate interest in remaining in an area is best recognised by the means adopted by the parties of allowing it to choose where to spend the reinstatement moneys."

The ratio for the overall question is contained in paragraph 39 of the judgment where the Court stated:

"Accordingly, the answer to the first question is that, once it has been established that the house is not economically repairable, Tower has no right to choose the basis of settlement. It is then for the insured, not Tower, to decide whether to rebuild (or repair) on site, or to rebuild elsewhere, or to buy another house. Of course it must incur these costs before Tower need pay anything more than the appropriate measure of present day value."

 The measure of settlement where insurer pays the cost of buying another houseAs stated above, one of the questions remitted to the Court was the correct measure of settlement where Tower settled its liability by paying the cost of purchasing another house. The High Court had put it this way at paragraph 58 of its judgment:

"the amount to be  payable by Tower, where it is to pay to Skyward the cost of buying another house, is to be the fair price of a replacement house which is to be a reasonable and practical extent comparable, of the same 270 m² size and construction (as far as may be possible), in the same condition, and of the same style and extent (more or less), as the Kingsford Street house was when new. This could be a new or (more likely) a second-hand house sited outside the red zone. As to whether its size, construction and quality were reasonably comparable, these would all be determined on the facts of this particular case..."

The Court of Appeal disagreed. It stated that the maximum amount payable by Tower as prescribed by all three relevant alternatives was materially the same. The first two alternatives expressly adopted full replacement value at the present site. The third alternative adopted the (necessarily notional) costs of rebuilding on the existing site. The amount payable by Tower if Skyward bought another house was not subject to any other limitation, including any limit on the size, style or quality of the other house. Counsel for the insurer submitted that this was contrary to the indemnity principle (refer: Castellain v Preston (1883) 11 QBD 380). He referred to the valuation evidence to the effect that the cost of rebuilding the house would be up to $770,960.00. Skyward would therefore receive between $860,000.00 and $920,000.00 as the measure of its loss when a comparable house would cost about $365,000.00 and its pre-earthquake market value was $211,000.00. If Skyward was paid the currently estimated rebuilding cost when it did not intend to rebuild, it would be receiving more than three times the market value of the house at the date of loss. The Court of Appeal held that payment at the higher value simply reflected what the parties had agreed - specifically, a measure of loss referable to a replacement value as opposed to the "present day value" (i.e., the indemnity value). Payment using the higher value was therefore justified. The ratio for the overall question is contained in paragraph 49 of the judgment where the Court stated:

"...We are satisfied that if Skyward buys another house Tower is bound to pay the cost of that house up to the cost which Skyward would notionally incur in repairing its existing house to the same condition and extent as and when new and up to the same area as shown in the certificate of insurance."

Did Tower irrevocably elect to make a payment based on full replacement value?The High Court held on the evidence that there was no such election. This was essentially a factual question and it appears that Counsel for the Skyward did not focus a great deal of attention on it in the Court of Appeal hearing. The Court of Appeal concurred that there was no such election, and determined it accordingly but observed that this issue was irrelevant in light of the answer to the two former questions.CommentThe policy in this case offered unlimited replacement value cover. In New Zealand, as is already the case in the United Kingdom and in certain other countries, insurers are ceasing to offer this kind of cover. Instead, they are limiting their liability to a stipulated sum insured that is either linked to an actual valuation (usually commissioned by the policyholder) or in its absence a default valuation. The kind of issues face in this case should, therefore, become increasingly rare as policies under the "old" regime go off risk over the next twelve months, subject to any litigation that is commenced.In this case, the Court of Appeal was prepared to take the fairly robust step of reading down the express term "in all cases: ... we have the option whether to make payment, rebuild, replace or repair your house." The relevant sentence was the proviso to the "second alternative" basis of settlement provision, which was: "we will only allow you to rebuild on another site or buy a house if your house is damaged beyond economic repair." The Court characterised the relevant "allowing" as a "veto", a concept which by its nature required the exercise of an "underlying choice" in the first instance.  By this reasoning, the policyholder had a choice which it was at liberty to exercise. If there is any appeal, this line of reasoning will no doubt be subject to further scrutiny.Giving weight to the parties' respective interests is significant in what was otherwise a non-contextual "black-letter" contract interpretation analysis. The Court of Appeal referred to the policyholder's ownership interest, which included a "legitimate interest" in retaining a neighbourhood link to the existing location of the property, in contrast to the insurer's "strictly economic" interest. The suggestion that, in an insurance policy, language must be unequivocal in order to leave unaddressed a policyholder's legitimate interest in the property, is a unique one as far as this correspondent is aware. This may be the first blip on the radar of a potential incorporation of the United States' approach to contract interpretation which considers the parties "legitimate expectations."(Published on 22 April 2014, updated on 23 April 2014)

Recent case confirms "inducement" requirement in material non-disclosure cases

This article was first published in Law Talk on 29 March 2014

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A recent case confirms the centrality of inducement where material non-disclosure is an issue in a non-marine insurance context.In Pan Atlantic Insurance Co Ltd v Pine Top Insurance Co Ltd [1995] 1 AC 501, the House of Lords as it then was, redefined English law (for non-marine cases) so that any material non-disclosure would only lead to avoidance if it induced the insurer into entering into the contract. If inducement is not proved as a fact then the insurer may not rely on the non-disclosure to avoid the contract. Pan Atlantic was considered in a number of New Zealand cases, but not directly applied until Jaggar v Lyttleton Marina Holdings Ltd [2006] 2 NZLR 87.That the non-disclosure induced the underwriter into entering into the contract is another way of saying the non-disclosure caused the underwriter to write the risk in the way that he or she did. It does not need to be shown that the risk would have been declined, but only that the insurer would have taken it into account.What this means, in practical terms, depends on the risk in question. For consumer level insurance, the relevant underwriting practices will in effect be codified in a computer programme, with little or no discretion on the part of the operative considering a proposal. Whether the test is satisfied in this context can be ascertained very quickly. This may explain why non-disclosure cases with insurance at this level are now fairly rare.For higher level commercial insurance, and certainly for reinsurance, an actual underwriter will actively apply his or her mind to whether to accept the risk and if so on what terms. The inducement requirement requires evidence from this person as to whether they would have taken the fact into account had they known the correct position. There will be therefore direct scrutiny of their decision-making process.This kind of evidence was considered in New Zealand Local Authority Protection Programme Disaster Fund v New India Assurance Company Ltd [2013] NZHC 1327.LAPP is a charitable trust that maintains a disaster fund for the benefit of local authorities for loss and damage to certain infrastructural assets in the event of catastrophes such as earthquakes. The trust was established by a trust deed executed in 1993. A replacement trust deed which made some changes to the terms of the trust was entered into in 2007. The inducement topic concerned the changes to the trust deed.Following the Canterbury earthquakes, LAPP sought summary judgment on of a sum of money from New India (a following reinsurer to a lead reinsurer) under the relevant insurance contract. It was incumbent on LAPP under the High Court Rules to satisfy the Court that New India had no reasonably arguable defence.New India contended that material changes occurred when the plaintiff adopted the 2007 trust deed in place of the earlier 1993 deed without LAPP knowing. It argued that the provisions of the later deed removed or reduced restrictions on the amounts which insurers such as the defendant might have to pay out pursuant to reinsurance contracts. Therefore the terms of the 2007 deed ought to have been disclosed to the defendant. The failure to do so, it was argued, was a material non-disclosure which permitted the defendant to avoid the policy.The New India witness deposed that he would have been concerned about the change in the deed because the terms of the 2010 policies meant that all loss settlements made by LAPP were unconditionally binding on New India provided that those settlements were within the terms of LAPP’s trust deed and the insurance contract. He stated that he would have wanted to satisfy himself that any change to the trust deed did not impact upon, or affect the trustees’ obligations under the deed.The Court stated that it was reasonably arguable on the basis of the witness’s evidence that if he been told that there had been a change in the trust deed, he would have called for a copy of the original deed. This led to an inference that he may then have gone on to carry out a comparison of the two deeds, reached the view that the terms of the 2007 deed were comparatively disadvantageous, and either declined insurance or offered on different terms.The Court stated that it was sceptical about whether the witness  would have followed up in this way had he been advised that the trust deed had been changed. In simple terms, the witness appear to have said that at the relevant time he was content to leave such matters to the lead insurer. The Court stated that it understood his evidence to say that he was prepared to trust another insurer’s judgement on that issue because the particular structure adopted under the old arrangements had given him a satisfactory level of comfort. The Court then stated at paragraph 43:

If that is so, then when the subscription basis for insurance ended, taking with it the protection or assurance that Mr Balasubramanian took from it, one might have expected to see some evidence of him actively attempting to make his own judgement about what was in the trust deed. He could not have done that without calling for a copy of the current trust deed.

 Nonetheless, this particular issue was not capable of being resolved in a summary judgment context. The Court went on to find, in any event, that the the changes to the trust deed were not material. It granted the plaintiff’s summary judgment application.Inducement as a topic is sensibly the first port of call where material non-disclosure is considered to be an issue. From an insurer’s perspective, this should involve an interview with the underwriter, who will need to demonstrate how the company’s underwriting practices and procedures would have affected his or her judgment about the risk had the relevant facts been disclosed. Strictly speaking, the underwriter’s subjective opinion about the materiality of the fact is not relevant to this inquiry. From the insured’s perspective, it should look to focus on this issue as soon as possible. There will be cases where insurers, potentially for reasons of commercial sensitivity, do not wish to disclose their underwriting practices and may prefer to concede the point.

NZ Supreme Court grants leave in insurance policy interpretation case

The Supreme Court (McGrath, Glazebrook and Arnold JJ) has granted leave to appeal in Firm PI 1 Limited v Zurich Australian Insurance Limited [2014] NZSC 19.The question is whether the sum insured for buildings under the material damage section of the contract of insurance is inclusive or exclusive of sums payable to the insured by the Earthquake Commission under the Earthquake Commission Act 1993 for natural disaster damage to the insured’s buildings from the 22 February 2011 earthquake.

ICNZ Earthquake case heading to Supreme Court

In University of Canterbury v Insurance Council of New Zealand and Ors [2014] NZSC 13 the Supreme Court has granted leave to appeal on the following issue:

"Where a building is an earthquake-prone building in terms of s 122(1) of the Building Act 2004, is a council entitled under s 124(1)(c)(i) of the Act to require the building to be strengthened to an extent greater than is necessary to ensure that the building will not have its ultimate capacity exceeded in a moderate earthquake (as defined in reg 7 of the Building (Specified Systems, Change the Use and Earthquake-prone Buildings) Regulations 2005)?"

Standard of proof for "follow the settlement" provisions

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In a decision late last year the English High Court confirmed that the relevant standard of proof for "follow the settlement" type provisions is arguability rather than balance of probabilities: Tokyo Marine Insurance Ltd v Novae Corporate Underwriting Ltd [2013] EWHC 3362.Justice Hamblen held that he was bound by earlier Court of Appeal authority on the topic.It is understood that the case is under appeal.The outcome of the appeal will be of interest to any lawyer or litigant currently involved in a New Zealand reinsurance dispute.Traditionally, there have been very few cases involving reinsurance in the New Zealand Courts. The Canterbury earthquakes changed all that, with several reinsurance cases being reported in 2013  (each linked to an arbitration context).Toyko Marine concerned retrocession insurance, i.e., the insurance of reinsurance, but the principle under scrutiny will be applicable to relevant reinsurance disputes.