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Double Insurance and Contribution ______ University of Southampton Research Repository ePrints Soton Copyright © and Moral Rights for this thesis are retained by the author and/or other copyright owners. A copy can be downloaded for personal non-commercial research or study, without prior permission or charge. This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the copyright holder/s. The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the copyright holders. When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given e.g. AUTHOR (year of submission) "Full thesis title", University of Southampton, name of the University School or Department, PhD Thesis, pagination http://eprints.soton.ac.uk UNIVERSITY OF SOUTHAMPTON FACULTY OF LAW, ARTS & SOCIAL SCIENCES School of Law __________________________________________________________________ DOUBLE INSURANCE AND CONTRIBUTION _________________________________________________________________ Nisha Mohamed Thesis for the Degree of Doctor of Philosophy December 2013 1 TABLE OF CONTENTS INTRODUCTION BACKGROUND 6 AIMS AND OBJECTIVES 7 STRUCTURE AND METHODOLOGY 8 OUTCOMES 15 PART A: DOUBLE INSURANCE CHAPTER 1: DOUBLE INSURANCE 1.1 The meaning of Double Insurance 16 1.2 Methods of interpreting wordings in policy with double insurance clauses 21 1.3 Contribution as a general concept 24 1.4 Return of Premiums when the Insurer Refuses to Pay 27 1.5 Legislative Framework of the Return of Premium 29 1.6 Position Prior to Legislation 29 CHAPTER 2 THE RIGHTS OF AN ASSURED 2.1 The devices Insurers use to avoid indemnifying an assured: Are they fair? 32 2.2 Escape Clause against Excess Clause 34 2.3 Escape Clauses against Escape Clauses 38 2.4 Excess Clause against Excess Clause 38 2.5 The effect of Rateable Proportion Clauses 39 2.6 Clauses in combination: Excess or Escape Clauses against Rateable Proportion Clauses 40 2 CHAPTER 3: Legislative Provisions – Section 45 Insurance Contracts Act 1984 3.1 s45 Insurance Contracts Act 1984 : “Other Insurance” Clauses – The Australian legislation barring double insurance exclusion clauses and whether the English Law needs the same? 45 3.2 s45 Insurance Contracts Act 1984 –“Other insurance” provisions 49 3.3 Meaning of “the insured”– any difference from “any insured” or “an insured” 52 3.4 The meaning of “entered into”- include non-party insured? 53 3.6 s45: The Exceptions 56 3.6.1 Exception 1: Not being a contract of insurance required to be effected by or under a law, including the law of a State or Territory 61 3.6.2 Exception 2: s45 (2) Subsection (1) does not apply where some or all of the loss is not covered by a contract of insurance that is specified in the first-mentioned contract. 63 3.7 The meaning of “Specifically” under s45 (2) 64 3.8 The Requirement for an assured to Notify the Assured: Validity of s45 (1) 68 3.9 s45 and its impact on Excess Clauses, Exclusion Clauses and Rateable Proportion Clauses and when the clauses work in combination 77 3.10 True Excess Liability in a Policy 79 3.11 Clauses: Achieving the Aims of the ALRC 87 3.12 Severance of void parts in clauses 95 3.12 Is there sufficient protection for the Insurer? 97 3.13 Zurich Australian Insurance Ltd v Metals & Minerals Insurance Pty Ltd: The Appeal 97 3.14 Review of the Insurance Contracts Act 1984 105 3.15 Analysis of the cases 107 3.16 The Effect of the “Other Insurance” Clause- the American View 109 3.17 The Canadian Position on Double Insurance 112 3.18 Possible Alternatives 115 3.19 Possible Solutions to the Clauses: Is there a solution? 116 3 PART B: CONTRIBUTION CHAPTER 4 THE MEANING OF CONTRIBUTION 4.1 When does contribution arise? 121 4.2 Balancing the Interest of the Insurer and the Assured 122 4.3 Contribution: Common Law or Statutory? 124 CHAPTER 5 WHEN THE RIGHT OF CONTIBUTION ARISES 5.1 Factors which have to be present for Contribution 126 5.2 Same Subject Matter Common to Both Policies and Each Policy must cover the Same Interest in the Same Subject Matter 126 5.3 Each Policy must cover the Same Risk 130 5.4 The Policies Must be in force and valid 140 CHAPTER 6 THE RIGHTS OF AN INSURER TO SEEK CONTRIBUTION AND ENFORCEMENT 6.1 The rights of an insurer to seek contribution 142 6.2 Methods of calculating insurer’s liability for insurance 144 6.2.1 Maximum Potential Policy 144 6.2.2 Independent Actual Liability 145 6.2.3 Common Liability Test 147 6.3 Criticisms and possible solutions 149 6.4 Volunteers in Indemnifying and the Right of Recovery 151 6.5 Whether Incidental overlaps allow a contribution? 154 4 CHAPTER 7: ASBESTOS LITIGATION FROM AN INSURANCE PERSPECTIVE 7.1 Development of the cases regarding Mesothelioma 160 7.2 Mesothelioma Litigation and its impact 161 7.2.1 The decision in Fairchild v Glenhaven Funeral Services Ltd 163 7.2.2 Fairchild v Glenhaven Funeral Services Ltd: The Court of Appeal Stage 172 7.2.3 Bolton Metropolitan BC v Municipal Mutual Insurance Ltd 172 7.2.4 Barker v Corus : revisiting Fairchild 175 7.2.5 Durham v BAI (Run Off) Ltd- A review of the cases 179 7.3 Reasoning of the Mesothelioma case: What is the possible solution and does it apply to double insurance? 192 CHAPTER 8 CONTRIBUTION UNDER COMMON LAW AND ITS EQUITABLE POSITION 8.1 Contribution under Common Law and equity 204 8.2 Joint Liability and Contribution: its implication for insurance 204 8.3 The implementation of the Civil Liability (Contribution) Act 1978 208 CHAPTER 9 CONCLUSION Articles 220 Books 222 Reports 223 Legislation 224 Table of cases 224 5 1. Background: The Theory of Double Insurance Fraud is always a concern when an insurer issues a policy to an assured. An assured can take out numerous policies and claim indemnity under all the policies, which would result in the assured receiving more than he is entitled to. Is the fear of fraud justifiable and are such exclusions or limitations in insurance contracts preventing recovery where there is other insurance effective? Further, is there sufficient protection for insurers by way of contribution from other insurers. It is beneficial to look at the history and development of the law of insurance, to understand how the law relating to double insurance has developed and the factors the courts may take into account when deciding such issues. The courts in many jurisdictions have tried to deal with the problems which have arisen as a result of such clauses. The courts have also dealt with the question of whether the assured is or should be given any protection when double insurance arises, and if so, whether the insurer has to pay out under the insurance policy. However, where there are rateable proportion clauses with other types of clauses, the solution is not that clear. It is quite common for judges, when dealing with such cases, to conclude that the case before it is not a case of double insurance. In some cases, even though the trial judge may hold that the case before him, on the facts, were sufficient to give rise to double insurance, on appeal, the appeal courts have come to the conclusion that the facts of the case do not give rise to one of double insurance. This clearly shows what a difficult concept double insurance is. This has resulted in the courts not actually being able, even till now, to provide any real solid rules or guidelines on double insurance1. Further, even though an assured has taken out insurance with numerous insurers he will not 1 Although recently in National Farmers Union Mutual Insurance Society Ltd v HSBC Insurance (UK) Ltd [2010] EWHC 773 (Comm), Gavin Kealey QC sitting as Deputy High Court Judge, tried to provide some guidance. 6 be able to recover more than the loss he has actually suffered. This is the general principle of indemnity. The next problem for an assured is then, from which insurer the assured can seek recovery from. Is there a particular order when seeking recovery or can he recover from whichever insurer he chooses? At the moment, the law on this is also unclear. 2. Aims and Objectives On researching the issues raised by double insurance, it seems that the Australian approach to double insurance could be a possible way forward for English Law, with some amendments. It could be argued that this would require the enactment of legislation which would take time, however, as seen from the historical discussion below, the law always developed to meet the changing needs of the industry, the rights of the parties and for policy reasons. In Australia, the Australian Law Reform Commission in its Report No 20 went through the authorities in England dealing with the clauses and concluded that they were “difficult to follow and impossible to reconcile”. In Australia as a result of the Report, specific legislation was implemented. This was in the form of s45 of the Insurance Contracts Act 1984. Emphasis was placed more towards the protection of the assured as opposed to the insurer. Under this section any “Other insurance” would be considered void, unless they fell within the two exceptions under s45 (1) and s45 (2) of the legislation. Under s45 (1) this would be where it was not a contract of insurance required to be effected by or under law, including the law of a State or Territory.
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