Thank you to those of you that voted for us. Once again we are seated at the finalist table for 2017. The awards will take place on 23 November 2017.
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Earthquake Insurance Assignment - Indemnity Only
In Xu & anor v IAG & anor [2017] NZHC 1964 the High Court (Nation J) decided that reinstatement rights/benefits were not assignable to a new owner where the earthquakes occurred before the new owner took ownership and the previous owner purported to assign the rights/claims by a deed of assignment. So the new owner was only entitled to indemnity value as an assignee.
The rights under the policy were held to be personal rights of the insured. The High Court applied the Court of Appeal decision in Bryant v Primary Industries [1990] 2 NZLR 142. The Xu decision will be subject to an appeal. It will cause problems for assignees and maybe people that gave advice about recoverability
Progress Reported on Kaikoura Earthquake Claims
Just over one third – 34% - of the 38,000 plus residential claims from the Kaikoura earthquake managed by EQC, and private insurers have been settled at 31 July 2017, EQC says.
In a progress report on insurance claims from the earthquake, EQC says 62% of building claims had had their initial assessment completed at 31 July – up from 51% assessed, and 28% settled at 30 June. So far EQC says it has paid $39.1 million to insurers who manage EQC customers, and $21 million to customers that EQC manages (land and/or properties with open or unresolved claims for prior natural disaster damage). It says the focus continues to be on the hardest hit communities within Marlborough, Kaikoura and Hurunui, meaning assessment and settlement progress there has been greater. EQC is on track for “the majority” of Kaikoura earthquake customers to receive their settlements by the end of 2017, it says.
Kaikoura MOU Variation
EQC also says that private insurers and EQC recently signed a variation to the Memorandum of understanding relating to Kaikoura earthquake claims management. The original MOU covered the management of EQC claims for damage arising from the earthquakes centred “in and around” Kaikoura between 14 November and 13 December 2016. The variation extends the time period of the original MOU, and now covers EQC claims for damage arising from earthquakes “in and around” Kaikoura from 14 December 2016 through to 13 December 2017.
EQC says the effect of the variation is that if a homeowner has previously lodged a Kaikoura earthquake-related EQC claim, the new claim will be assessed and settled by the same insurer who managed their previous Kaikoura earthquake-related EQC claim. If a homeowner is lodging an earthquake-related EQC claim for the first time as a result of another Kaikoura area earthquake, the claim is for land damage, or they have an open EQC claim from a previous event (such as 2010-2011 Canterbury earthquakes), their claim will be managed by EQC.
Prattley v Vero Insurance - Costs Judgment
Prattley Enterprises Ltd unsuccessfully sued Vero Insurance to set aside a settlement agreement on insurance claims for earthquake damage to Worcester Towers. It lost in the High Court, Court of Appeal and Supreme Court. Risk Worldwide funded the litigation.
In Prattley Enterprises Ltd v Vero Insurance New Zealand Ltd [2017] NZHC 1599 the High Court (Dunningham J) awarded Vero $277,674 for legal costs and $467,571.67 for disbursements. Vero had sought $596,508 for legal fees and $472,800.48 for disbursements. Apparently Risk Worldwide agreed to meet the costs as the funder of the litigation.
AMI Insurance - Exclusion Clause Application
In AMI Insurance Ltd v Legg & ors [2017] 321 the Court of Appeal upheld AMI’s appeal that it was liable to indemnify the Leggs for damage/costs from a rubbish heap fire on their Selwyn property in January 2013. Some of the material in the heap came from the Leggs’ lifestyle block and some from a separate landscaping business run by their company Evolving Landscapes Ltd. Legg insured the lifestyle block with AMI and ELL insured the business with Lumley.
In the High Court Nation J held both insurers liable. Contrary to Nation J’s findings the Court of Appeal held that there was an effective causal connection between the ELL material on the heap and the resultant fire. The Court applied the principle from Wayne Tank & Pump Co Ltd v Employers Liability Assurance Corporation Ltd [1974] 1 QB 57 that states where a loss has two effective and interdependent causes one within the policy and one excluded by it, the exclusion prevails. The AMI policy excluded liability in connection with any business.
The ELL was an effective and interdependent cause of the fire so AMI was not liable to the Leggs
Earthquake Damage or Pre-Existing?
In He v Earthquake Commission and ors [2017] NZHC 2136 the High Court (Dunningham J) had to decide whether the damage to Mr He’s property at 377 Selwyn Street, Addington was caused by the earthquakes or not.
The judgment records that over the life of the proceeding Mr He had engaged 6 different structural engineers. The judgment also records that the tenant of the property at the time of the earthquakes supported EQC and the insurer that the damage existed before the earthquakes. Predictably Mr He lost.
A surprising case to run to trial.
The men of GS recently participated in the Steven Adams Invitational.
This is a charity tournament with the aim of raising funds for the Sports Pathways Trust, to assist with its work of promoting junior basketball in New Zealand. Funds raised will help with the trust's mission of developing young student athletes in New Zealand
Introducing: Nina Lala
Nina graduated with a BA from the University of Auckland in May 2017 and an LLB from Auckland University of Technology in July 2017.
Nina was admitted to the bar in August 2017.
Prior to joining the team at Grant Shand, Nina worked at a boutique civil litigation firm in Auckland
