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Which insurance policy appeal

In QBE Insurance (International) Ltd v Allianz Australia Insurance Ltd [2018] NZCA 239 the Court of Appeal upheld the High Court decision that Allianz was not liable for earthquake damage because its insurance policy did not commence until 4pm on 4 September 2010 in relation to the earthquake that occurred at 4.35am.  The QBE policy ended at 4pm on 4 September 2010 so it was solely liable.  The agreement between the insured’s broker and Allianz on placement was that the Allianz policy would incept on the expiry of the QBE policy.  Any later documents could not affect that agreement.

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Southern Response Earthquake Limitation Statement

Here is Southern Response’s  28 June 2018 statement about enforcement of limitation defence(s) after 4 September 2018.  Southern Response had previously said that it would not enforce a limitation defence before 4 September 2018.  In its statement it says that after 4 September 2018 its position is that the limitation period runs from the date that Southern Response settles, declines, or advises in writing a decision on the claim.  This is similar to the EQC and Tower position.

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IAG failed earthquake insurance repairs

In Robin v IAG & ors [2018] NZHC 1464 the High Court (Gendall J) reversed the decision of Matthews AJ in Robin v IAG & ors [2018] NZHC 204 about joining as defendants people involved in post earthquake repair work.  Ms Robin owned 214 Fitzgerald Avenue.  She sued IAG alleging that the earthquake repair work done did not restore the house to the policy standard.  She also sued the manager of the repair work, Canterbury Reconstruction Ltd.  IAG joined Hawkins who monitored/assessed the remedial work as a third party.  IAG then asked the Court to join as defendants Houselifters Ltd, Max Contracts Ltd and the Christchurch City Council.  Ms Robin opposed the joinder.  Gendall J said that Matthews AJ was wrong not to join them as defendants.  They were involved in the allegedly defective work and no other party could/would  join them as third parties.  It would not be onerous for Ms Robin to formulate and prove the claim(s) given she had sued CRL.

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Vero loses waiver summary judgment

In Gabriel & ors v EQC & Vero [2018] 1255 the High Court dismissed an application by Vero for summary judgment against the current owner of an earthquake damaged house based on an argument that the original insured had waived the claim against Vero.  The original insured owner had apparently agreed with Vero in 2013 to close the claim, however, the evidence was uncertain about whether the claim referred to was only the “out of EQC scope claim” or the entire house claim.   So the Court refused to enter summary judgment and the claim continues against Vero by the current owner assignee.

 

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Southern Response- Misleading Conduct

Southern Response (formerly AMI Insurance) had a practice of maintaining duplicate remedial costings for earthquake damaged houses.  A “customer” version and an “office” version.  The “customer” version did not include demolition, professional fees and contingency.  The “office” version included these costings.  Southern Response concealed the “office” version with the effect that many people settled their insurance claim for less than their entitlement.  Rick and Anna Groen sued Southern Response in the High Court claiming breaches of the Fair Trading Act and duty of good faith.  The High Court in Groen v Southern Response [2018] NZHC 1025 recently considered the status of the legal advice Southern Response received in the context of witness statements and an upcoming trial.  The judgment contains a good summary of the issues.  The Court decided that Southern Response could edit witness statements and statement of defence to remove reference to legal advice, but if at trial it tried to rely on the legal advice for its conduct then it would waive privilege over the advice and must provide the advice.  There are likely thousands of people in the same situation as the Groens that also have claims against Southern Response.

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Insurance Assignment – Indemnity only

In Xu & anor v IAG New Zealand Ltd [2018] NZCA 149 the Court of Appeal confirmed the High Court decision that under the insurance policy the reinstatement right under the policy was not transferable to a subsequent owner.  It was personal right that could not be assigned.  Because the original insured did not reinstate the house before selling it to the current owner there was no right to reinstatement costs.  Xu received indemnity value only.  The Court of Appeal followed its previous decision in Bryant.  It is now likely that Xu will try to have the Supreme Court consider the issue.  This judgment affects subsequent owners that may have bought a house with an assigned claim expecting to recover reinstatement costs.

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Myall v Tower Insurance – no further appeal

The Supreme Court in Myall  v Tower Insurance Ltd [2018] NZSC 35 has refused an application by Mr Myall for leave to appeal the Court of Appeal decision about professional fees on a house rebuild and the apportionment of the rebuild cost based on under insurance.  It said that notwithstanding obvious errors by the High Court and Court of Appeal there was no question of general or public importance.

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Earthquake Claim Limitation – IAG & Southern Response

Here is a short video I did about the limitation act(s) applying to earthquake claims and the extended limitation period(s) that apply to claims against IAG and Southern Response.  For IAG it is 30 June 2018 and Southern Response it is 3 September 2018.