Shirley Hirst ETANA Specialist Risks JHB

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1 ETANA General Liability Seminar 21 October 2013 Shirley Hirst ETANA Specialist Risks JHB PAGE 1

2 Agenda Liability Insurance Overview Basic Liability Concepts Broadform Liability Policy Wordings Policy Extensions Underwriting Information ESR Capacity PAGE 2

3 Liability Insurance Overview Liability insurance in South Africa is basically divided into 2 spheres namely: criminal law and civil law. An action by a person can have both civil and criminal legal consequences but the two fields of law have entirely different applications. Criminal Law : a crime is a wrong that is prejudicial to public interest and offenders are prosecuted by the State for an offence that contravenes either common law or a specific Statute. Civil Law is concerned with the protection of the legal rights of the individual against other individuals and the State. Civil actions can be framed in various forms the 2 most common causes of action being contractual and delictual (negligence). PAGE 3

4 Liability Insurance Overview Delictual Liability In essence, Delictual Liability is concerned with damages suffered by a person as a result of a wrongful act or omission of another for which that person is entitled to compensation in terms of our common law. The basic elements of Delict are : * conduct * wrongfulness * fault * causation * damage All 5 elements mentioned above must be present before a person can be said to be delictually liable. Delictual liability represents the largest exposure for any organisation. Essentially, most liability policies only cover delictual liabilities. PAGE 4

5 BASIC LIABILITY CONCEPTS Black s law dictionary defines liability as: * a contract (implied or tangible) by which one party promises to * compensate or reimburse another party if * they suffer financial loss from a specified cause or * indemnify the other party against loss arising from that cause. Liability insurance is one of the higher potential risk cover types due to: - the extent of the potential exposure - the element of unknown potential exposure - constant changes in law and in legal requirements - the long tail cover that can run for many years PAGE 5

6 BASIC LIABILITY CONCEPTS The purpose of liability insurance to provide a measure of protection to individuals and companies against their legal liability as a result of them causing : * Injury * Loss * Damage to third parties/third party property. Liability Policy therefore provides financial compensation to the insured in respect of successful claims brought against the insured by a third party/parties. Liability policy expresses the sum insured as a limit of indemnity - which is the maximum amount of compensation that insurers would pay out in the event of a successful claim. PAGE 6

7 BASIC LIABILITY CONCEPTS This indemnity payment made by Insurers will include: - all damages suffered by a third party - legal costs incurred in investigating/defending the matter - any other costs and expenses incurred (for example - claim preparation costs) The settlement payment may be made to: - one or more claimants - arising out of any one occurrence - or arising out of a series of occurrences that emanate from one original source or cause. PAGE 7

8 Basic Liability Concepts How does a client decide on an appropriate limit of indemnity? Risk assessment: what type of business are they involved in? do they design / manufacture / supply / retailer? do they export if so to which countries? do they understand the liability exposures imposed by legislation in those countries to which they export? (Strict Liability) do they import (either components or finished products)? If so, do they maintain full rights of recourse in contract and are they assured of recourse in the event of any problems)? What Limits of Indemnity do they require / how much can they afford to spend on Liability insurance / what risk can their balance sheet tolerate? PAGE 8

9 Basic Liability Concepts Types of Liability Covers available in the RSA market (both in the general and specialists underwriting markets) include inter alia: Personal Liability General Liability Products Liability Employers Liability Contractors Liability Professional Indemnity Liability Motor Liability Directors & Officers Liability Employment Practices Liability Warehouseman s Liability Carriers Liability Marine Liability PAGE 9

10 Basic Liability Concepts An Occurrence policy will respond to any claim occurring and made against the Insured during the policy period. Claims/ Circumstances that occurred during the policy period are covered no matter how much later they are reported to the Insurer. A Claims Made policy will respond to claims made against the Insured during the policy period of insurance (or within the Retroactive Date) as stated in the policy schedule. Any claim which arises within the policy period of insurance but that is not reported to the Insurers within the policy period will not be covered (unless the policy specifically contains a clause known as an extended reporting option which provides a time period extension for reporting of claims or circumstances). PAGE 10

11 Broadform Liability Policy Wordings 3 types of Liability wordings are available: Primary, Excess of Loss, and Umbrella Primary the essence of a Broadform Primary wording lies in the clauses and definitions. Our ESR Broadform wording in particular provides for the following wide definitions : Bodily Injury shall mean death, injury, illness, or disease; and injury may also include nervous shock, mental anguish or mental illness. Personal Injury shall mean Bodily Injury, invasion of the right to privacy, discrimination, libel, slander, defamation of character, wrongful arrest, detention, imprisonment, eviction or wrongful accusation of shoplifting. PAGE 11

12 Broadform Liability Policy Wordings Property shall mean tangible property, except in Section 1- Public Liability where it includes rights of light, air, and water, but for the avoidance of doubt shall not include information (including electronically stored information), intellectual property, or intangible property rights of any kind, or any value therein. Product shall mean any goods (including packaging, containers, labelling, instructions or advice provided in connection therewith) : 1. sold, supplied, distributed by or on behalf of the Named Insured; 2. erected, repaired, serviced, altered, treated or installed by the Named Insured in the course of the Business; and which have left the care, custody and control of the Named Insured. PAGE 12

13 Broadform Liability Policy Wordings There is no need for a manufacturer of a product to carry Professional Indemnity for the design, formula, specification of his products in terms of our policy this is covered in terms of the Products Liability section of the policy wording. NB: Broadform Products Liability cover automatically includes Defective Workmanship liability. It is important to note that insurers do not cover the trade risk of the costs of rectifying work not carried out correctly only the consequences of / liability flowing from such defective workmanship. Cross Liabilities Clause This clause provides for legal liabilities that arise between intercompany subsidiaries but important to note that cover will not apply separately to each subsidiary company but overall to the Named Insured as an entire entity. PAGE 13

14 Broadform Liability Policy Wordings Excess of Loss wording follow form of Primary wording basis. Umbrella wording N.B. does not automatically provide wider scope of covers such as Products Inefficacy, Guarantee/Recall, Pure Economic Loss these covers have to be requested and will be priced per risk exposures. ADVANTAGES : - the Umbrella policy comprises sections providing the following cover - 1. Excess of Loss - Limits are increased above that of Scheduled Underlyers on follow form basis and with stepdown upon exhaustion of Aggregate Underlying Limits PAGE 14

15 Broadform Liability Policy Wordings 2. Difference in Conditions - If a term or exclusion of a Scheduled Underlyer precludes a claim and the Umbrella does not contain a similar exclusion or definition then this section steps down to the agreed deductible up to the limit of the Umbrella Policy. PAGE 15

16 Broadform Liability Policy Wordings What is the difference between Product Liability and Professional Indemnity/Errors & Omissions cover? Products Liability - injury or damage from products sold or distributed by an Insured. Completed Operations (Defective Workmanship) - consequential injury or damage due to work completed by an Insured. All Product Liability policies will exclude the following: a) the cost of repairing and/or replacing the product itself b) c) the costs incurred in recalling defective products. Inefficacy - failure of Product to perform which the result of such failure results in a pure financial loss to a third party PAGE 16

17 Broadform Liability Policy Wordings Professional Indemnity / Errors & Omissions - covers the Insured s Negligence in providing a Professional Service, for which they receive a fee, and excludes any and all liability arising out of any product. Gratuitous Negligent Advice covers the Insured for their legal liability to pay a third party arising out of incorrect or inadequate advice given in the course of the Business, provided that such advice is not given in exchange for a fee. PAGE 17

18 Policy Extensions Products Inefficacy: a third party suffers a financial loss by reason of tangible property being rendered incapable of full commercial benefit or rendered of less value as a result of the Insured s Products failing to perform as specified, guaranteed or warranted. Products Inefficacy does not provide cover for the product itself and/or the value of the product supplied by the Insured. Products Guarantee : covers the Insured s legal liability to, and costs incurred in, the repair or replacement a defective product. PAGE 18

19 Policy Extensions Products Recall : covers the costs incurred by the Insured in withdrawal of the product from the market (i.e. after it has left the care, custody and control of the Insured) where it has been established that the use of the product is likely to cause Injury or Damage to property not just because the product simply does not work. These costs typically include media communication of the planned recall, transport costs, hiring of additional personnel to assist with the recall, etc. Insurers usually request a copy of the Insured s Recall Plan prior to rating the exposure. Pure Economic Loss : is financial damage suffered by a third party as a result of the negligent act the Insured which is not accompanied by any physical damage to a person or property (other than any negligent act of the Insured in the course of performing professional services or duties as a director or officer). PAGE 19

20 Underwriting Information Broker Submission or Proposal Forms will accept internal/competitor proposal forms Minimum Information: Name of the Insured Main location and number of locations Detailed business description and description of products/ services Does the Insured manufacture, distribute or import? What is the purpose of the product/service and end use of the product/ service? Turn over figure Split in turn over per major product and major exporting region. Claims History at least 3 years PAGE 20

21 Capacity ESR s current capacity R150m Public Liability incl Sudden and Accidental Pollution R150m Advertising Liability / Care Custody and Control R150m Spread of Fire R150. Incidental Medmal R150. Products Liability R150m agg Products Inefficacy R150m agg Product Guarantee & Recall R 50m agg Employers Liability R150m Excess of Loss Motor & Passenger Liability Motor R150m with attachment point being a Primary LOI not less than R2,5m Pure Financial Loss R 50m We can offer North American Jurisdiction cover on selective risks PAGE 21

22 Thank You ETANA INSURANCE COMPANY LIMITED. (Reg. No. 2001/009647/06) A Licensed Financial Services Provider (FAIS License No ) Etana House 22 Oxford Road (Entrance in Federation Road), Parktown, Johannesburg, 2193 PO Box 3051, Johannesburg, 2000 Tel: Fax: /3 PAGE 22

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