A corollary of working on professional indemnity matters is advising upon insurance coverage issues and acting in insurance coverage disputes.
As a barrister, Laina has worked on several significant insurance coverage disputes where the fundamental issues have been the ability of the insurer to rely upon the dishonesty, fraud and non-disclosure of the insured to deny insurance coverage. An attendant issue is the issue of proof. Should the insurer be entitled to rely upon the factual findings in the judgment which the insured is relying upon to prove both the civil liability and the basis of that liability to establish its entitlement to rely upon the exclusion clauses? Would it be unconscionable to allow the insured to utilise the judgment to establish the basis of their civil liability but to preclude the insurer from relying upon the factual findings to establish the basis of the exclusion clause? What is the currency of the principle in VACC Insurance Co Ltd v BP Australia Ltd (1999) 47 NSWLR 716?
Another recurrent issue in insurance coverage disputes is also the number of applicable excesses and the number of occurrences. Although a deceptively simple issue, its resolution involves not only an understanding of the case law on the issue but also value judgments.
Insurance coverage disputes can also arise in recovery actions brought by insurers after they have paid out on claims made under a construction all risks policy. If the recovery action is brought against other insureds under that policy then the existence of cross liability and waiver of subrogation clauses in the policy may preclude the insurer from seeking to recover from one or more insureds under the policy.