Insurance
Unraveling the fine print
Wynn Williams has for some time been an industry leader in the specialised field of insurance law. 

We have longstanding relationships with New Zealand and many internationally-based insurers and also accept instructions from businesses, bodies corporate and homeowners looking to resolve an insurance related issue, often on referral from insurance brokers, other lawyers or accountants.  

Wynn Williams is recommended as a Leading Firm in the insurance category by the 2017 Asia Pacific Legal 500, and is ranked in the 2017 Chambers Asia-Pacific legal rankings for its work in insurance law. Necessarily much of our focus in the past few years has been the Canterbury earthquakes and we have been intensely involved in the insurance and building responses.

Our hallmark is product knowledge.  We have been involved in a number of policy revision and redrafting programmes and commonly advise on coverage questions for all forms of property and liability lines, and reinsurance treaties.

Our aim is to provide accurate and practical advice, with cost effective resolutions for claim disputes and third party actions.  We understand the importance of accessibility, clarity and promptness for insurer and policyholder alike.

Our services cover professional indemnity; product and public liability; directors’ and officers’ liability; business interruption; fire and general; disability and income protection.

Wynn Williams has expertise in disputes involving insurers as parties and is regularly instructed to act in:
  • Disputes where the insurer has accepted liability and is indemnifying the insured.
  • Disputes where the insurer's liability is disputed over questions of policy interpretation, scope of coverage and application of exclusions or endorsements arise.
Recent cases include:
  • Acting for financial advisors sued for negligent advice where an insurer has declined cover.
  • Successfully acting against professional advisors accused of negligence and professional liability.
      




Specialists

Recent Projects

  • Leading concluding negotiations for a client for the settlement of an insurance claim in excess of $100m.
  • Successfully appearing in the Court of Appeal in leading insurance fraud case AMI v Devcich [2011] NZCA 266
  • Insurance and liability opinions on instructions from other lawyers, brokers and accountants.
  • Insurer appointed counsel for major building company involved in an intensive building dispute over structural design deficiencies, pursuing alternative dispute resolution.
  • Providing strategic claims specific advice to a domestic lines insurer on policy interpretation and application issues, claims measurement and settlement decisions.
  • Whilst at another firm: Defended a claim against a nationwide firm of auditors sued by a client who had been a victim of employee theft. The claim settled following mediation.
  • Whilst at another firm: Defended a claim against a firm of accountants sued by a financial advisor who also advised the accountant's client.
  • Whilst at another firm: Represented solicitors in disciplinary proceedings in respect of complaints made to the Legal Complaints Service by an estate beneficiary.
  • While working in the UK: Dealt with the defence of a £14 million composite claim made against a third party advisor in the insurance industry. The claim was settled following successful interlocutory arguments.
  • Whilst at another firm: Defended a claim against a firm of solicitors arising out of property transfers and which included allegations of negligence, fraud and breach of fiduciary duty. A drop hands settlement was agreed following mediation.
  • Whilst at another firm: Defended a claim against a firm of solicitors which arose out of a failed property development scheme. A drop hands settlement was agreed following mediation.
  • Instruction by health & life insurer in the largest life insurance claim paid in NZ history (to that point), where a comprehensive investigation with respect to suspected fraud involved liaison and coordination with investigators in numerous disciplines (loss adjusters, investigators, forensic accountants, financial advisers and business analysts), and advising primary and re-insurers
  • Successful resolution on behalf of health & life insurer of very contentious proceedings commenced by high profile media identity, who repeatedly threatened insurer with adverse media coverage – which had the risk of causing significant reputational damage;
  • Acting for health & life insurer in $6m suspected fraud where proceedings had been commenced, which involved multiple jurisdictions and exhaustive investigation
  • Acting for real estate firms on numerous leaky building claims involving multiplexes
  • Successfully mitigating sentence to minimum level imposed on international engineering firm in a HSE prosecution concerning failure to maintain lift services at major Auckland transport terminus
  • Acting for client on major fraud scheme ('mortgage ramping') including identifying how the frauds occurred, and liaison with NZ Police/Crown prosecutors
  • Complete re-drafting of retail health & life policy wordings being offered to the NZ market on behalf of off-shore insurance syndicate
  • Complete re-drafting of re-insurance treaties for off-shore reinsurer following Canterbury earthquakes
  • Successfully resolving claims against financial advisers/fund managers where there had been defalcation of trust funds
  • Successfully defending real estate agents facing disciplinary charges in the Real Estate Agents' Disciplinary Tribunal
  • Appearing as lead counsel for Southern Response on High Court earthquake claims including the two leading cases on measurement of 'notional rebuild' costs where policyholder not in fact rebuilding on same site.
  • Conducting as lead counsel, a precedent case for an owner of a Sumner house subject to a s124 Notice, claiming total loss basis of settlement against EQC and insurer.
  • Guiding and representing numerous residential policyholders to negotiate settlement of their earthquake claims.
  • Advising numerous commercial policyholders; to present and negotiate settlement of their material damage and business interruption earthquake claims.
  • Representing CBD landowner at negotiations for the sale of designated land and improvements to the Crown.
  • Acting for a major policy holder in the first solvent scheme of arrangement for an insurance company approved by the High Court in New Zealand.
  • Arrangements for an insurer concerning the management and procurement of construction services for the rebuilding of Christchurch as a result of the Canterbury earthquakes worth approximately $1 billion. Associated issues relating to building standards for repairs and rebuilding.
  • Advising Body Corporate (mixed commercial and residential units) on presentation of material damage and business interruptions claims; negotiating bases of settlement and guiding body corporate on application of insurance proceeds and amendment to the unit plan.
  • Senior Counsel for AMI in proceedings where insurance company successfully resisted insurance claim from fire damage to leaky home because of insured’s involvement in arson.

Articles

22/08/2017

Double Insurance or Seamless Cover? When the Inception Time of Insurance Cover Matters

The time of inception on an insurance policy has recently been considered by the High Court in Body Corporate 74246 & Ors v QBE Insurance (International) Limited and Allianz Australia Insurance NZ [2017] NZHC 1473.

Keep reading...


22/12/2016

Reopening an insurance cash settlement agreement? Supreme Court says no!

In Prattley Enterprises Limited v Vero Insurance NZ Limited [2016] NZSC 158 the Supreme Court unanimously confirmed that a signed settlement agreement was binding on the parties, where the insured party asserts it was operating under a mistake over its entitlement under the policy. On appeal from the Court of Appeal, Prattley had (again) sought to set aside the settlement agreement it signed with its insurer Vero, on the basis that both it and Vero entered the settlement under a common mistake as to the correct measure of indemnity under the policy.

Keep reading...


27/10/2016

Can a settlement agreement ever be set aside?

The UK Supreme Court has now clarified an uncertain area of law regarding deceit and misrepresentation in the context of settlement agreements, where fraud is suspected: Hayward v Zurich Insurance Company plc [2016] UKSC 48.

Keep reading...


29/08/2016

Deadline for 4 September 2010 earthquake claims fast approaching

If you have an unresolved insurance claim you may need to act fast. Under New Zealand's limitation legislation (the Limitation Act 1950 and the Limitation Act 2010), you can only bring a claim within six years from the date of the event that leads to your dispute. If you bring a claim outside that time, limitation provides a complete defence.

Keep reading...


15/01/2016

Legal Defence Costs and the Limits of Professional Indemnity Insurance

The Court of Appeal confirmed last month that professional indemnity insurers can apply a very strict interpretation of which business activities are insured under a PI policy. Just because an activity is part of a business enterprise does not mean cover applies for any and all professional liability which may arise.

Keep reading...


12/08/2015

Papering over the cracks: a summary of the University of Canterbury v Insurance Council of NZ

On 22 December 2014, the Supreme Court affirmed the decisions of the Court of Appeal and the High Court in finding that local authorities cannot require building owners to strengthen buildings so they exceed 33% of the new building standards (NBS).

Keep reading...


30/05/2015

Insurance risks drive robust legal activity

Richard Johnstone provides commentary for NZ Lawyer's June Magazine. Almost half a decade after the first powerful quake shook the Canterbury region in 2010, we might expect earthquake-related legal insurance work to be tailing off.

Keep reading...


28/08/2014

Supreme Court finds no doctrine of merger in commercial property policy

The Supreme Court has now considered an insurer's liability for multiple events occurring in the same policy period, addressing policy interpretation, the doctrine of merger, and the indemnity principle: Ridgecrest NZ Limited v IAG New Zealand Limited [2014] NZSC 117, on appeal from the decision of the Court of Appeal in July 2013. Ridgecrest owned a commercial building in central Christchurch, which was insured with IAG under a State "Businesspack" policy. As a result of the Canterbury earthquake sequence, Ridgecrest lodged four claims for earthquake damage, following earthquakes on 4 September 2010, 26 December 2010, 22 February 2011 and 13 June 2011. Each of those "happenings" occurred in the same policy period, and each claim was accepted by IAG.

Keep reading...


22/05/2014

Does Tower really hold all of the cards? Apparently not

The concerns we raised in our article "Does Tower really hold all of the cards?" have been confirmed in the Court of Appeal's decision, with Tower clearly not holding all of the cards when it comes to choosing the basis for, and measure of, settlement under their Provider House (Maxi Protection) Policy. Skyward Aviation 2008 Ltd v Tower Insurance Limited [2014] NZCA 76

Keep reading...


9/04/2014

The proof is in the pudding or, in this case, petrol on the shoe

Angus & Erksine-Shaw v Ace Insurance Ltd & lloyds' underwriters (ak hc, cooper j, 24/2/14) Justice Cooper (who wrote the Crystal Imports decision) is certainly making his mark as far as insurance law. In his decision in Angus & Erskine v ACE Insurance & Lloyds' Underwriters of 24 February 2014, he engaged in an exhaustive analysis of an arson / attempted fraud on the insurers.

Keep reading...


24/03/2014

Does your contract prevent you being sued in negligence?

The Court of Appeal has recently considered this question, albeit at a very preliminary level. In 2006, the Grey District Council built an aquatic centre in Greymouth. Unfortunately, the roof of the centre was built with deficiencies. Untreated timber was used for the roof beams and at the point where aluminium and steel fixings were attached to the beams, the steel nails had corroded. The council sued its engineering company, a second engineering company (engaged by the first engineers to peer review the construction design), and an employee of the second engineering company who issued a producer statement for design to the council (the "defendants").

Keep reading...


19/03/2014

The ongoing debate concerning automatic reinstatement memoranda in material damage covers

Crystal Imports v Certain Underwriters at Lloyds & Sirius International Insurance (Ak Hc, Cooper J, 19/12/13) A further decision was released by the Auckland High Court late last year (Cooper J) regarding the effect of automatic reinstatement of the sum insured clauses in material damage (MD) policy wordings in the context of Christchurch earthquake claims. The decision addressed similar issues to those previously considered by the High Court in Wild South Holdings v QBE Insurance and the Court of Appeal in Ridgecrest v IAG.

Keep reading...


17/12/2013

Another Look at Destruction, Automatic Reinstatement and Deductibles

Hot on the tail of the recent decision in Wild South Holdings the High Court has had another post-quake opportunity to analyse a commercial material damage insurance policy, this time one of Vero's. In Marriott v Vero Justice Dobson was asked to answer a number of questions:

Keep reading...


22/08/2013

Does Tower Really Hold All The Cards?

Skyward Aviation's house and sleepout at 108 Kingsford Street, Burwood were damaged in the 2010/2011 Canterbury earthquakes. It was insured by Tower under a "Provider House (Maxi Protection) Policy." The property is within CERA's residential red zone and the land has been sold to the Crown for $291,000, so it is no longer an option for the house to be repaired or rebuilt on site.

Keep reading...


20/08/2013

Broker Left Without Professional Liability Cover

IAG have successfully appealed an earlier decision not to strike out an insurance broker's claim for cover under his professional liability cover. The broker had failed to place cover for his client homeowners, but made a number of assurances to them that cover was in place. The homeowners were left uninsured for subsequent earthquake damage to their house. The homeowners were successful in their claim against the broker for their loss.

Keep reading...


11/07/2013

Ridgecrest Appeal: Insurers' Liability for Multiple Events

The Court of Appeal has now addressed the interpretation of an insurance policy in response to multiple event claims, confirming that an insured is entitled to be indemnified for each loss resulting from insured events: Ridgecrest New Zealand Limited v IAG New Zealand [2013] NZCA 291, on appeal from Dobson J's decision in the High Court in November 2012.

Keep reading...


11/06/2013

Payment of Sum Insured Over and Above EQC Cover

On 15 May the High Court delivered a judgment in respect of a body corporate's earthquake claim against its insurer Zurich: Body Corporate 398983 v Zurich Australian Insurance Limited [2013] NZHC 1109. The issue for determination was whether the amount Zurich was to pay was in addition to the sums paid by the Earthquake Commission.

Keep reading...


22/05/2013

Sharing in the Proceeds: A Tenant's Interest in its Landlord's Insurance Policy

A recent decision of the High Court Earthquake List in Christchurch has considered the interests of a tenant under its landlord's insurance policy.

Keep reading...


8/05/2013

Buyers Beware - The Risk of Damage to Purchased Property

A recent decision of the High Court in Christchurch shows that difficulties for vendors and purchasers remain where the property suffers damage before the property changes hands.

Keep reading...


17/04/2013

Insurance Contracts to be bound by fairness?

On the evening of Wednesday 17 April, Craig Foss, Minister of Commerce and Consumer Affairs, proposed without prior announcement an amendment to the Consumer Law Reform Bill, specifically targeted at insurance contracts. A Supplementary Order Paper released on 10 July 2013 makes substantive amendments to the Consumer Law Reform Bill, alleviating the concerns raised in the following article.

Keep reading...


11/04/2013

High Court Earthquake List: Key Issues for Determination

An Earthquake List was implemented in the High Court in May 2012 to ensure that cases involving disputes arising out of the earthquakes are dealt with as swiftly as possible.

Keep reading...


8/04/2013

Behind the media coverage: the impact of O'Loughlin v Tower Insurance

The impact of the Christchurch Residential Red Zone on insurance claims was clarified on Friday (5 April 2013) by Justice Asher of the High Court in O’Loughlin v Tower Insurance.

Keep reading...


4/04/2013

Don't Get Burned - The Importance of Business Interruption Insurance

Recently a demolition business owner had three of his trucks destroyed by arson. Unfortunately, whilst the business has insurance for the damage to the trucks, it has no cover for the business it will lose with three of its fleet out of action.

Keep reading...


11/03/2013

When is indemnity value payable?

An insurer's obligation to pay indemnity value does not depend on an insured's election after an insured loss, the High Court has recently and unsurprisingly confirmed.

Keep reading...


7/02/2013

Earthquake-prone building policy not enforceable

Six days after the 4 September 2010 earthquake, the Christchurch City Council adopted its Earthquake-Prone, Dangerous and Insanitary Buildings Policy 2010 (the Policy). The High Court has recently found it is unenforceable in terms of the level of strengthening required for earthquake-prone buildings.

Keep reading...


3/12/2012

Home Owners' Success Against Insurance Broker

Earthquake damage has thrown into question the adequacy of many home and business owners' insurance cover.  Some property owners have placed cover through an insurance broker.  If the cover has proved to be inadequate, these owners may well be looking for an answer from their broker.

Keep reading...


29/11/2012

Ridgecrest: Insurers' Liability for Multiple Earthquake Events

The High Court is currently operating a special 'earthquake list' to fast-track earthquake-related insurance disputes.  One of the first decisions from that list, Ridgecrest NZ Limited v IAG New Zealand Limited1, deals with the extent of an insurer's liability for a commercial building in central Christchurch that suffered damage from four earthquakes during the same period of insurance.  

Keep reading...


12/11/2012

Councils' Duty of Care to Purchasers of Subdivided Land

The High Court at Greymouth has recently found that a council does have a case to answer where it incorrectly certifies conditions of subdivision have been met and a subsequent purchaser of the land relies on those certifications.

Keep reading...


24/10/2012

The Insurance and Savings Ombudsman: Challenging your Insurer following the Canterbury Earthquakes

When choosing house insurance, you place your trust in the insurance company.  So when an earthquake damages your home, and the carefully-selected insurer does not respond in the way you expect, the financial loss, disappointment and frustration can be devastating.

Keep reading...


18/10/2012

Drastic Change to the Leaky Building Landscape

In Spencer on Byron the Supreme Court held that local authorities owe a duty of care in their inspection role to all building owners. This is a huge development, as previously such a duty only recognised residential building owners.

Keep reading...


27/09/2012

The CCDU Blueprint and Insurance

The Insurance Council of New Zealand's most recent statistics show that just 45% of all commercial claims arising from the Canterbury earthquakes have been settled (despite more than two years having passed since the first earthquake of 4 September 2010).  There are, therefore, still a number of commercial claims to be resolved.

Keep reading...


16/09/2012

Opting-Out of EQC Managed Repairs

"Opting-out" of the Fletcher / EQC managed earthquake damage home repairs may seem like the relief that some anxious earthquake damaged homeowners are desperately seeking.  However, while it certainly serves as a useful alternative, there are risks that a homeowner must carefully consider before "leaping up to opt-out" and it may not necessarily be suitable for all.

Keep reading...


9/09/2012

Special Earthquake List for Courts

At a seminar for lawyers on 5 September 2012, Justice Miller spoke about the use of the new 'Earthquake List' for earthquake-related claims filed with the High Court.

Keep reading...


23/08/2012

A New Approach To Litigation Privilege?

If and when litigation privilege attaches to reports obtained by insurers is a hotly debated issue. The general principles can be easily stated and are well accepted: the document in question must have been prepared for the dominant purpose of providing advice in respect of reasonably anticipated litigation.

Keep reading...


20/07/2012

Commercial Earthquake Insurance Claims - Lessons Learned and Observations

When going into bat for commercial clients to help maximise their earthquake insurance claims, two things are vital:  information and tenacity.

Keep reading...


9/02/2012

Payments to Cease: Business Interruption Insurance

With the anniversary of the 22 February earthquake fast approaching, business interruption insurance is poised to re-enter the spotlight. The end of the month (February 2012) could bring a fatal blow to some businesses.

Keep reading...


22/06/2011

Financial Adviser's Liability - Armitage v Church

Late last month the first High Court decision on a defended claim for financial adviser liability was issued.
Perhaps surprisingly, there have been few claims against financial advisers that have progressed to trial and judgment since the global financial crisis and finance company crash in New Zealand.  This may be because most professional indemnity insurers have declined to indemnify financial advisers for losses in connection with diminution or depreciation in value of investments.  The absence of insurance cover may be dissuading would be plaintiffs.

Keep reading...


13/03/2011

A Beginner's Guide to Business Interruption Insurance

This is a beginner's guide to the hot topic (in Canterbury anyway) of business interruption. In addition to a general overview of loss of gross profits cover, it touches on issues to be mindful of, common disputes and underwriting pitfalls. Each policy and every business have their own unique issues. If you need to make a claim, take some professional advice.

Keep reading...


Reported Decisions

  • Kraal v Earthquake Commission [2014] 3 NZLR 42
  • Fussell v Broadbase Christchurch Ltd [2011] 16 ANZ Ins cas 61-913
  • Wyatt v Real Estate Agents Authority [2012] 25 NZTC 20-152
  • Garnett v Tower Insurance Ltd [2011] 17 ANZ Ins Cas 61-918
  • Hamid v England (2011) 12 NZCPR 844, [2011] 13 TCLR 376
  • Fidelity Life Assurance Co Ltd v Pilkington [2010] 16 ANZ Ins Cas 90-144
  • Department of Labour v P F Olsen & Co Ltd [2003] DCR 196
  • Fussell v Broadbase Christchuch Ltd (2011) 16 ANZ Ins Cas 61-913



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Wynn Williams Christchurch
Level 5, Wynn Williams House, 47 Hereford Street, Christchurch 8013, New Zealand.
PO Box 4341, DX WX11179, Christchurch 8140.
+64 3 379 7622
+64 3 379 2467
Wynn Williams Auckland
Level 11, AIG Building, 41 Shortland Street, Auckland 1010, New Zealand.
PO Box 2401, Shortland Street, Auckland 1140.
+64 9 300 2600
+64 9 300 2609
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