In the context of professional indemnity insurance, there have been multiple instances in which claimants have attempted to join – as a party to court proceedings – the insurer of an alleged wrongdoer.
In NSW, the application to join an insurer is usually made under section 6 of the Law Reform (Miscellaneous Provisions) Act 1946.
The Court of Appeal's decision in Walter Construction1 concluded that – in respect of "claims made" policies – two events (in substance) needed to have occurred in the same policy year, namely:
- The "happening of the event" that gave rise to a claim for damages or compensation.
- The claim against the insured (alleged wrongdoer) triggering the "claims made" policy.
An insurer (of an alleged wrongdoer) would only be joined to proceedings, pursuant to section 6, if a claimant established both of these elements.
The effect of the Walter Construction case was to place significant hurdles in front of a claimant who wished to sue an insurer directly.
In recent times, claimants seeking to join insurers have had mixed success:
- In Sciacca2, Justice Schmidt permitted a professional indemnity insurer to be joined to proceedings. Her Honour allowed for the possibility that a claimant may have made an oral claim against an insured in the same policy year as the "happening of the event" that gave rise to the claim.
- In KCRAM3 a professional indemnity insurer of a valuer was joined to proceedings. The facts were somewhat complicated. The claimant was a mortgage insurer who had issued an insurance policy to lenders. The Court concluded that the "happening of the event" was when the mortgage insurer had paid out money to the lender pursuant to its policy. It was held that this occurrence was the damage suffered by the mortgage insurer and was regarded as the "happening of the event" giving rise to the mortgage insurer's claim for damages.
- Late last year, Justice Davies in Malouf4 refused to join an insurer to proceedings. This was a professional indemnity claim against a solicitor. His Honour concluded that the "happening of the event" which gave rise to the underlying claim was when the solicitor breached his contract/retainer. Justice Davies concluded that, on this date, the claimant's breach of contract claim was complete and actionable. It was irrelevant that the claimant's loss (perfecting the negligence cause of action) was occasioned at a later point in time. Justice Davies concluded that "the happening of the event" occurred well prior to the claim against the insured which potentially triggered the policy.
While a body of highly technical law is developing in the context of section 6 applications, the Court of Appeal in Western Australia, late last year, found an alternate basis for permitting a claimant to sue an insurer directly.
In QBE Insurance v Lois Nominees5, the Western Australian Appeal Court (by majority) allowed a plaintiff – who was a claimant against an insolvent insured, and who was not a party to any insurance policy:
- To seek a declaration that insurers were liable to indemnify the insured.
- For those purposes permitted a claimant to proceed directly against the insurer.
The Western Australian decision is a noteworthy development.
In NSW, insurers on "claims made" policies (particularly professional indemnity insurers) have until this point been entitled to take a measure of comfort from the extent of technical hurdles thrown up by the Walter Construction and Malouf judgments.
If, however, NSW courts follow this recent Western Australian decision, it will provide an easy avenue for claimants to avoid the technical jurisprudence which has grown up in NSW around section 6.
This is an issue which potentially promises broader insurance coverage opportunities to policyholders, or to those seeking the benefit of insurance issued to policyholders.
Footnotes
1 The Owners - Strata Plan No.50530 v
Walter Construction Group Limited (In Liquidation) & Ors
[2007] NSWCA 124
2 Sciacca v Ace Insurance Ltd [2011] NSWSC
798
3 Genworth Financial Mortgage Insurance v KCRAM Pty
Limited (In Liquidation) (No.2) [2011] FCA 1124
4 Perpetual Trustees Victoria Ltd v Malouf
[2012] NSWSC 1119
5 QBE Insurance (Aust) Ltd v Lois Nominees Pty
Ltd [2012] WASCA 186
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
