Patrick Bracher, Director at Norton Rose Fulbright.
The forthcoming UK Insurance Act has some useful ideas about treating customers fairly.
Pre-contractual representations cannot be converted into warranties and “basis of the contract clauses” have been abolished. Specific warranties can still be included in the policy. It is, by the way, not a good idea to incorporate the application for insurance in the policy because the two documents are incompatible.
Any rule that breach of a warranty (express or implied) results in the discharge of the insurer’s liability for events happening before the breach is abolished and a breach of warranty can be remedied for future losses to be covered. Bear in mind that all warranties in South Africa do not have the same drastic consequences as in the UK and we require breach of a material term.
A term reducing the insurer’s risk (not one defining the risk as a whole as in the insuring clause) may not be relied on unless the insured can show that non-compliance did not increase the risk of the loss which actually occurred in the circumstances in which it occurred. In other words the insured can show that the breach of the term did not cause the loss. The provision relates to terms reducing the risk of a particular kind (eg not driving with smooth tyres), at a particular location (eg war zones) or at a particular time (eg a building unoccupied for more than 30 days).
Lloyd’s of London are changing their policy wordings to bring them into line with the new law. Perhaps you want to look at your own wordings to get ahead of the curve.
First published by Financial Institutions Legal Snapshot (http://goo.gl/ZErhAf)
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