16. INSURANCE LAW LEE

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1 (2006) 7SAL Ann Rev Insurance Law INSURANCE LAW LEE Kiat Seng LLB (Hons) (National University of Singapore); LLM (Maritime Law) (London); Advocate and Solicitor (Singapore); Adjunct Associate Professor, Faculty of Law, National University of Singapore. Life insurance policies Ambit of section 61(1) Insurance Act 16.1 One question which has never been the subject of judicial deliberation is that of the exact ambit of s 61(1) of the Insurance Act (Cap 142, 2002 Rev Ed). Section 61(1) reads: In any case where the policy owner of any life policy or accident and health policy of an insurer dies, and the policy moneys are payable thereunder on his death, the insurer may make payment to any proper claimant a prescribed amount of the policy moneys of all such policies issued by the insurer on the deceased s life without the production of any probate or letters of administration; and the insurers shall be discharged from all liability in respect of the amount paid A proper claimant as used above is defined in s 61(6)(b) to mean a person who claims to be entitled to the sums in question as executor of the deceased, or who claims to be entitled to that sum (whether for his own benefit or not) and is the widower, widow, parent, child, brother, sister, nephew or niece of the deceased The question which arises of s 61(1) is: What is the ambit of the provision? Whatever else may be the aim of this provision, is it one which can only be invoked by the insurers, or may any proper claimant compel the insurer to pay out the policy moneys? 16.4 The case of Vaswani Roshni Anilkumar v Vaswani Lalchand Challaram [2006] 2 SLR 257 brought up the uneasy relationship between s 61(1) and the practice of insurance companies allowing policyholders of life and accident policies to nominate their beneficiaries.

2 310 SAL Annual Review (2006) 16.5 The contest was between the nominated beneficiaries under the policies and the beneficiary of the deceased s estate The facts are simple. The deceased had, prior to his marriage, purchased three policies. His father had been nominated as beneficiary under the first policy. Both his parents were named as beneficiaries under the second and third policies. Upon the death of the deceased, the insurer was prepared to pay out under the above policies to the parents of the deceased as named beneficiaries. A complication, however, arose: the deceased s widow staked a claim on these moneys on the basis that since the deceased had died intestate, she was entitled to half the deceased s estate under the Intestate Succession Act (Cap 146, 1985 Rev Ed) and this would include any moneys payable under any of the deceased s policies This contest between the named beneficiaries under the policies and the widow of the deceased, took the parties from the District Court all the way up to the Court of Appeal The nominated beneficiaries commenced proceedings against the widow in the District Court. The court held in favour of the nominated beneficiaries. The widow appealed to the High Court, where again the court ruled against her. The decision of the High Court was that these moneys did not form part of the estate of the deceased and the insurer would obtain a valid discharge if it paid the moneys out to the nominated beneficiaries. Further, the administrator of the estate would also have been entitled to demand payment of the policy moneys and would then have to distribute such moneys to the persons entitled to them. The widow then appealed to the Court of Appeal The Court of Appeal was very clear in its pronouncement that there was no legislation which addressed this issue of competing claims to insurance moneys where the deceased had nominated beneficiaries under the policy. Section 73 of the Conveyancing and Law of Property Act (Cap 61, 1994 Rev Ed) did not apply in this situation as the situation would attract the application of the provision only if the named beneficiaries were the insured s wife or children The court laid down its view of s 61(1) of the Insurance Act: this provision was not meant to deal with competing claims. The aim of the provision was to facilitate and expedite payment by an insurer to a proper claimant without the need for the claimant to first obtain letters of

3 7 SAL Ann Rev 309 Insurance Law 311 administration. Furthermore, s 61(1) only applied where there were no named beneficiaries or where the deceased had stated that the moneys should go to his estate. In either event, the proper recipient would have been the estate. Effect of naming beneficiary under policy The Court of Appeal addressed the issue of what the effect of an insured person nominating a beneficiary in his policy was. The court held that the insured by so doing could be taken to have expressly authorised the insurer to make payment to such named beneficiary The argument of the widow that the estate was entitled to receive the moneys was premised upon the fact that the executors of an estate normally had the locus standi to sue on the deceased s rights. However, the court ruled that this reasoning was flawed as it only answered the question of who was entitled to sue under the policy, ie, the privity of contract issue. It, however, left open the question of who was entitled to the moneys The unusual conclusion that the Court of Appeal came to was thus: (a) the named beneficiaries were not entitled to bring an action against the insurer as they were not privy to the contracts of insurance; (b) the estate was not entitled to the moneys because the terms of the contracts of insurance stipulated that the insurer had to pay to the named beneficiaries; (c) however, the insurer was entitled to make payment to the named beneficiaries since this would accord with the terms of the contracts of insurance; by such act, the insurer would have discharged its contractual obligations The Court of Appeal made one more important observation. Although each policy under consideration had a recital which stated that the company will pay to the Assured, his Personal Representative or Assigns or persons otherwise entitled thereto the sum assured, the court was of the view that this would only apply if there had been no named beneficiaries and, consequently, payment was to be made to the estate. This is akin to the situation contemplated by s 61(1) of the Insurance Act.

4 312 SAL Annual Review (2006) The first thing which is clear from the case is that s 61(1) of the Insurance Act only applies where there is no named beneficiary under the contract of insurance The second thing which would go some way in mitigating the unfortunate consequence of this decision is the advent of the Contracts (Rights of Third Parties) Act (Cap 53B, 2002 Rev Ed) The court had ruled that even though the insurer would have discharged its contractual duties if it had paid out the moneys according to the directions of the insured, by way of his nominating the beneficiaries under the policy, such named beneficiaries would, nonetheless, have been powerless to do anything about those directions. This is simply due to their lack of privity. Even though it may have been intended for them to benefit under the contracts and both the insurer and the beneficiaries are aware of that intention, the beneficiaries have no right to enforce the contractual terms since they are not party to the contracts This, however, would not arise in respect of any policy taken out after 1 January After this date, the Contracts (Rights of Third Parties) Act would apply to allow such named beneficiaries to directly exercise rights against the insurer. Of course, this would only apply if the parties to the contract of insurance have not expressly excluded the operation of this Act If the parties to the contract of insurance have indeed excluded the operation of this Act, then the named beneficiaries may find themselves in the same hamstrung situation as those in this case the contracts intend for them to receive the moneys and yet they are unable to claim against the insurer. On the other hand, the insurer obtains a good discharge if he were to pay the named beneficiaries. But if he were to choose not to, there is nothing much that the named beneficiaries themselves may be able to do about it, without enlisting the assistance of the executors of the insured s estate in enforcing the contract. As can be seen in this case, that may not always be a viable option. Marine insurance policies Implied warranty of seaworthiness In marine insurance, it is critical to determine if the marine adventure being insured is a time policy or a voyage policy or a mixed one.

5 7 SAL Ann Rev 309 Insurance Law 313 The reason is because under s 39(1) of the Marine Insurance Act (Cap 387, 1994 Rev Ed), there is an implied warranty in a voyage policy that at the commencement of the voyage, the ship shall be seaworthy for the purpose of that particular adventure insured. On the other hand, there is no such corresponding implied warranty for a time policy: under s 39(5) of the Marine Insurance Act, the insurer is absolved of liability only if the ship is sent out to sea in an unseaworthy state, with the privity of the shipowner, and the vessel is lost as a result of such unseaworthiness It can be seen, therefore, that the onus on the insurer is much lighter in a voyage policy. All he needs to show is that the vessel was unseaworthy at the time the vessel commenced the insured voyage. The corresponding onus on the insurer, in the case of a time policy, is much heavier: not only does he have to demonstrate that the vessel is unseaworthy, he needs to further show that the shipowner was privy to such unseaworthiness and the vessel is lost as a result of the unseaworthiness In Marina Offshore Pte Ltd v China Insurance Co (Singapore) Pte Ltd [2006] 1 SLR 800 (HC); [2006] 4 SLR 689 (CA), the plaintiff s tug, the Marina Iris, which was built to operate in Japanese coastal waters, sank while on a voyage from Kobe, Japan to Singapore. The plaintiff sued its insurers to obtain an indemnity under the vessel s hull policies on the basis that the vessel was lost due to perils of the sea The issues before the court were, inter alia, whether: (a) (b) the policies were for voyage or time policies; the vessel was seaworthy when it set sail from Kobe; (c) if the policies were time policies, the owners were privy to the unseaworthy state of the vessel. Voyage or time policy The trial judge was of the view that the policies were mixed policies. The basis of this conclusion was that there were two distinct phases to the insurance cover. The first would be the delivery voyage from Kobe to Singapore. The second would be the use of the vessel thereafter for trading activities within Singapore and Indonesian waters. The court was influenced in its ruling on the basis that the words voyage risk were used in the trading limits clause of one of the policies, the fact that different deductibles were

6 314 SAL Annual Review (2006) imposed for different risks and the fact that the insurers had quoted different rates for the two phases of the insurance cover The Court of Appeal took a different view. It took the view that the policies were more germane to the interpretation that the vessel was on risk from the commencement of the policies: While it was contemplated that there would be various voyages undertaken during the period of cover, there were separate phases of insurance. The use by the insurers of a particular date for the attachment of risk was thought to be critical by the Court of Appeal, since in a voyage policy, such stipulation would not have been necessary because the risk would attach as soon as the vessel sailed off on the particular voyage. Further, the use of the phrase voyage risk was not unequivocal. The application of differing deductibles was simply a recognition of the reality that risks were different when the vessel sailed outside the trading limits. Seaworthiness Although the High Court and the Court of Appeal did not quite see eye to eye on the various factors argued to be indicative of the unseaworthy nature of the vessel, the consensus was that the vessel was indeed unseaworthy when it was sent to sea. Privity of shipowners Of course, under the analysis adopted by the High Court, if the policies were indeed mixed policies and the first phase of the policies was a voyage policy, then there would be an implied warranty that the vessel would be seaworthy at the commencement of its voyage. If that were the case, there would not be the need for any further inquiry into the facts However, since the Court of Appeal was left unconvinced that the policies were mixed policies, but rather time policies, the further question had to be asked: Were the shipowners privy to this unseaworthiness? The High Court observed, albeit in dicta, that there could be no doubt that the shipowners were privy to the unseaworthy state of the vessel. The Court of Appeal, on the other hand, placed great emphasis on the fact that the insurers had required a certificate of inspection from an expert on whether the vessel could safely make the voyage to Singapore. The inspection was for all intents and purposes a seaworthiness survey. Further, the owners

7 7 SAL Ann Rev 309 Insurance Law 315 had acted on the basis of the expert s opinion that despite the crew s lack of certification, they were sufficiently competent to sail the vessel to Singapore. In the light of these two facts, the Court of Appeal found that the owners were not privy to the unseaworthiness complained of by the insurers What is clear from the differing views of the High Court and the Court of Appeal is that whenever one is faced with a question of the nature of the policy, such questions of construction are always fraught with difficulties and uncertainty The manner in which the Court of Appeal approached the issue of the crew s lack of certification is instructive. The court seemed duly impressed that the owners had honestly held the belief that the lack of certification did not render the crew incompetent to undertake the voyage. The owners had used the various crew members on other voyages approximating the current delivery voyage. It was also pointed out that the owners had made efforts to consult the agent of the Panamanian registry of ships and the Kobe port authorities. In any event, the most important factor was that the report of the surveyor appointed by the insurers found the crew to be adequate for the voyage There is, however, one last observation which the Court of Appeal made which bears repeating: Seaworthiness has to be determined in relation to a particular voyage; it does not follow from the mere fact that the vessel is not classed that it is unseaworthy for that voyage. Duty of good faith in the presentation of a claim Anyone familiar with the law of insurance contracts will know about the duty of good faith, ie, contracts of insurance are contracts uberrimae fidei. This principle finds expression in, inter alia, s 17 of the Marine Insurance Act. One manifestation of this doctrine would be the duty not to make fraudulent claims The facts in Sumpiles Investments Pte Ltd v AXA Insurance Singapore Pte Ltd [2006] 3 SLR 12 are fairly simple. The floating crane Sumpile 28 was moored in Singapore when the boom of the crane dropped in an uncontrolled manner. This resulted in considerable damage. The cost of repairs was sought to be recovered from the defendant insurers under cl of the Institute Times Clauses (Hulls) of 1 October This clause covers loss or damage caused by the negligence of Master Officers Crew or Pilots

8 316 SAL Annual Review (2006) provided that such loss or damage did not result from the want of due diligence by the assured, owners or managers The main issue related to the cause of the loss. Not surprisingly, the plaintiff insured tried to argue that it was due to the negligence of the crew involved in the operation of the crane. On the other hand, the defendant insurer argued that it was more wear and tear that caused the loss. It was further argued that, if it was due to negligence, the plaintiff or its managers were guilty of want of due diligence It was held, quite correctly, by the High Court that under cl 6.2.3, the plaintiff first had to establish a prima facie case that the loss was caused by the negligence of the master, officers or crew; the burden then shifted to the defendant to prove want of due diligence. The court held that the plaintiff failed to discharge its legal and evidential burden The other issue which can be dealt with quite summarily is the argument by the defendant that the plaintiff had breached the warranty that the vessel under cover would be classed and class maintained during the currency of the policy. The defendant argued that this class warranty also covered the crane on board the vessel as it fell within the description of the word vessel. Since the crane was not classed for a period of time prior to the loss, the defendant was automatically discharged from the contract The High Court took the view that the word classed was more germane to the classification of vessels. On the other hand, installations on board such vessels could be registered under the registry of the installation. If the insurer had wanted the latter to be done, then it should have made it amply clear One surmises that the learned judge, Belinda Ang Saw Ean J, was applying the contra proferentum rule. This has to be correct as warranties, due to the drastic consequences of any breaches thereof, should be construed strictly The defendant insurer asserted that the plaintiff had breached its duty of good faith by causing or pressurising the crew into giving false statements to the surveyor investigating the incident.

9 7 SAL Ann Rev 309 Insurance Law The High Court made the following observations on fraudulent claims and the duty of good faith: (a) The insured s duty of good faith under s 17 of the Marine Insurance Act encompasses a duty not to put forward a fraudulent claim. (b) The common law rule is that if the insured presents a fraudulent claim, the insurer can deny liability for all other claims even if they are not tainted by the same fraud. (c) The common law rule in respect of fraudulent claims extends to cover the use of fraudulent means or devices associated with making the claim as well as during the course of the insurer s investigation of a claim. (d) In order to discharge the burden of proving that the insured had used fraudulent devices in the presentation of the insurance claim, the insurer will have to prove: (i) who the insured is for the purposes of the proper conduct or handling of the claim; (ii) that the insured intended to obtain an illicit advantage by the use of false statements to support its claim under the policy. (e) In respect of a corporate insured, the test is whose act, in the proper conduct or handling of the insurance claim, is for this purpose intended to be that of the company s. (f) The insurer will have to identify the person or persons, whose acts are attributable to the corporate insured, who were (i) (ii) and aware of the false statements; had a beneficial and financial interest in the claim; (iii) had power or influence to determine how the claim should be presented At the end of the day, the High Court held that the insurer had failed to put forward any evidence which supported its allegations of fraudulent presentation of the claim.

10 318 SAL Annual Review (2006) The High Court demonstrated in this case its willingness to require the insurer to be precise in its draftsmanship and to apply the contra proferentum rule to a warranty when there may be ambiguity in how the warranty is drafted The observations made by the court in respect of fraudulent claims are particularly instructive as it is probably the first case which has delved into such detailed analysis of the complex area of fraudulent claims in insurance law. Warranty of compliance with recommendations of towage survey prior to sailing Warranties are deadly creatures. The nature of such terms in an insurance contract is simple there must be strict compliance and, once breached, no rectification can be made. The result is an automatic discharge of the insurer from all liability. In the light of these draconian consequences, it is not surprising that parties to any insurance litigation will pick through the wording of the warranty with a fine-toothed comb. Furthermore, courts tend to be wary of warranties and would quite studiously apply the contra proferentum rule in favour of the insured: Where there is any ambiguity or doubt, such ambiguity will be resolved in favour of the insured In Royal & Sun Alliance Insurance (Singapore) Ltd v Metico Marine Pte Ltd [2006] 3 SLR 333, the two defendants owned the vessels in question. The plaintiff had issued a policy covering the delivery voyage of the vessels. The critical clause in question was Warranted towage approval survey by China Classification Society at the insured s expenses [sic], with all recommendations, if any, fully complied with, prior to sailing The survey was duly carried out on 30 November The certificate of fitness dated the same day was duly issued. On 21 December 2003, the vessels set sail. In the course of the voyage, salvage services were required. The insurer duly paid the salvage charges. The insurer later commenced proceedings to recover such salvage charges on the basis that the defendants were in breach of the above-mentioned warranty. The defendants counterclaimed for loss and expenses incurred as a result of the parting of the towrope and sought a declaration that no further premium was payable to the insurer under the policy.

11 7 SAL Ann Rev 309 Insurance Law There were three main issues which need detain us: (a) Did the warranty require the insured owners to comply with the recommendations both before and during sailing? (b) (c) Which was the operative survey report? What were the operative words of the survey report? Meaning of prior to sailing The survey report contained recommendations for matters that could be accomplished prior to sailing as well as matters that had to be adhered to after sailing. The insurer argued that all recommendations had to be complied with by the insured. The insured asserted that by the clear wording of the warranty, only those recommendations that pertained to matters which could be complied with prior to sailing were covered by the warranty The court agreed with the insured on this point. According to the plain and ordinary meaning of the words, prior to sailing meant exactly that. In any event, even if there was some ambiguity involved, any such ambiguity should be resolved in favour of the insured since the warranty was inserted for the benefit of the insurer. The tale of two certificates of fitness The next issue which had to be dealt with was that it appeared that there were two certificates of fitness. The first was issued in Chinese. The defendants then asked for it to be translated into English in order that they could understand the recommendations and comply with them. The second was then issued in English. The court accepted that both were authentic, despite protestations by the insurer The problem, however, was that the two certificates used slightly different language when it dealt with recommendations in respect of sailing in strong wind conditions. The Chinese version recommended that the vessel could depart under VI wind force of Beaufort scale, while the English version stipulated not stronger than Beaufort Scale 6. Of course, one can see there is some inconsistency between the two what happens when the wind force is exactly at 6 on the Beaufort Scale?

12 320 SAL Annual Review (2006) The court resolved the dilemma by adopting the English version as the authorised translation. It rejected the other translations that both parties had tried to rely on in court. It felt fortified in this conclusion as this would have been the working copy for the vessel owners when taking steps to comply with the recommendations therein. Further, the defendants had submitted this version to the insurer to satisfy the latter that they had complied with the recommendations therein. Meaning of to depart in day time on receipt of a favourable weather forecast for local area in 48 hours Two questions arose from one of the recommendations to depart in day time on receipt of a favourable weather forecast for local area in 48 hours : (a) What is required by the favourable weather forecast for local area in 48 hours? (b) How soon must the vessel depart after receipt of such forecast? Weather forecasts are issued in Shanghai daily at 0830hrs. The insured obtained such daily forecasts between 14 December 2003 and 16 December On 15 December 2003, upon receiving a favourable weather report, the owners instructed that the vessels be cleared out of Shanghai for Singapore. The vessels weighed anchor at 1400hrs on 17 December It is noteworthy that the owners did not obtain the weather forecast on the day of sailing The court dissected the recommendation into four elements: (a) the requirement to depart on receipt of a particular forecast; (b) (c) (d) the forecast must be a favourable one; the forecast should be one that covers the local area ; and the forecast should be for 48 hours The two main points of contention were in respect of the first and last elements. Did the first element require the vessel to depart immediately upon receipt of the forecast? The insurers argued that it did. The court could

13 7 SAL Ann Rev 309 Insurance Law 321 not agree with this and held that since the forecast was issued at 0800hrs and the warranty required the vessel to leave port during the day, taken together this would mean that the vessel should depart by sunset on the same day The second point was in respect of what is meant by a forecast in 48 hours? Did it mean that the insured was only obliged to obtain a favourable forecast for the local area within 48 hours prior to sailing, as contended by the owners? The court held that this could not be the meaning of the phrase, taking into account the purpose of this recommendation, which was to enable the master to know whether it was safe to set sail and whether within 48 hours after departure there would be times when he would need to seek shelter and therefore to allow him to plot his course accordingly (at [58]) The High Court came to the conclusion that the defendants had failed to comply with the first and last elements of this recommendation in respect of obtaining a favourable weather forecast. That being the case, the warranty was breached and the insurer was discharged from all liability. Hence, the claim by the insurer for the salvage charges succeeded and the counterclaim by the defendants was dismissed This case is interesting because of the way in which the warranty was drafted it tacked itself on to an external report, which the insured must comply with. There is an interesting question arising out of this practice: Are the recommendations themselves warranties, or at least should be treated as such? This situation is akin to basis of the contract clauses which are used quite freely in proposal forms the truth of all answers to the questions in the proposal forms are made warranties and the basis of the contract. In a sense, there is incorporation by reference If the recommendations themselves are akin to warranties, if not warranties themselves, should they not also attract the judicial attitudes to issues of construction of warranties, ie, be strictly construed against the insurer? It is a matter of conjecture whether the High Court would have held the same way if it had taken a stricter approach to construction in respect of the issue of the 48-hour weather forecast, as it did in respect of the construction of the phrase prior to sailing in the warranty proper.

14 322 SAL Annual Review (2006) Notice provisions in insurance policies One of the most critical timelines in insurance cases is that of the notice provision in an insurance policy. Most typically, there will be some time frame that will be stipulated as to when the insurer should be notified of a claim or of any event which may give rise to a claim If this duty to give notice comes merely with a time limit, but with no provision as to the effect of the breach of this duty, then the courts will be very much inclined to hold that such a duty is merely a condition and, hence, merely gives the insurer, in the event of a breach by the insured, a right to claim damages. In the light of this predisposition, insurers will by and large expressly frame these notice provisions as conditions precedent to their own liability. What should be noted about conditions precedent is that they are not as blunt an instrument as warranties, whereby any breach would result in the immediate and automatic discharge of the insurance contract, but any breach of a condition precedent will only result in the insurers not being liable for that loss for which the claim is being made In Stork Technology Services Asia Pte Ltd v First Capital Insurance Ltd [2006] 3 SLR 652, the court found that the circumstances of the loss were not as important as the factual matrix surrounding the giving of the notice of the loss by the insured. The plaintiff insured was the second defendant in a suit ( the main suit ) and was adjudged to be liable to contribute to the payment of damages. Prior to the main suit, the plaintiff had received a letter dated 18 July 2002 from English solicitors giving notice that their clients might look to the plaintiff for contribution in regards to an accident. On 11 September 2002, the plaintiff was served with papers for pre-action interrogatories by local counsel who had been instructed by the abovementioned English solicitors. The plaintiff initially gave notice and sent these papers to the wrong insurers. Seven days thereafter, the plaintiff forwarded the papers for the application for pre-action interrogatories to the defendant insurer. At the same time, the plaintiff informed the defendant insurer of the earlier letter from the English solicitors. Not surprisingly, the defendant insurer disclaimed liability The plaintiff applied to court for a declaration, following judgment in the main suit, that the defendant was liable to indemnify the plaintiff under the policy for all damages or sums paid or payable in relation to the main suit.

15 7 SAL Ann Rev 309 Insurance Law The defendant relied on the notice provision in the policy. Condition 3 stated that the insured had to immediately give notice to the insurer in the event of any occurrence which may give rise to a claim. Condition 10 stated that compliance with all the terms of the policy were conditions precedent to any liability of the insurer Hence, the only issue in this case was whether the defendant was entitled to require strict compliance of the notice provision by the plaintiff and repudiate liability on the basis of the plaintiff s failure to so comply This, in turn, would turn upon the court s construction of the following words or phrases in the insurance policy: (a) (b) immediately ; and may give rise to a claim. Meaning of immediately The High Court was of the view that immediately meant within a reasonable time and without any unjustifiable delay or with all reasonable speed considering the circumstances of the case (at [87]). From that perspective, a seven-day delay in notifying the insurer of the application for interrogatories would still comply with the term immediately. However, the two-month s delay in notifying the insurer of the letter from the English solicitors would run afoul of the stipulated time frame. Meaning of may give rise to a claim The court ruled that the letter from the English solicitors was one which would have alerted the plaintiff as to the possibility of a claim. Since the words in the notice provision related to anything which may give rise to a claim as opposed to likely to give rise to a claim, the event needed only to raise the possibility of a claim. There was no need for there to be a probability of a claim before the duty to notify arose The first thing that should be noted about this case is that it is one of the rare decisions that attempts to lay down the meaning of the word immediately when used in the context of a notice provision. Hence, the deliberations of the High Court would be instructive.

16 324 SAL Annual Review (2006) The other important thing about the case is the clear and unequivocal statement by the court that the common law does not require an insurer to prove that he has suffered prejudice before he may rely on a breach of condition precedent in a policy. This must be correct, for to allow otherwise would render nugatory the casting of these duties as conditions precedent to the liability of the insurer.