06 June 2013

Insurance: NZ Local Authority Disaster Fund v. New India Assurance



The High Court ordered reinsurer New India to pay $17.5 million on claims for earthquake damage to infrastructure assets suffered by Waimakariri Council and Christchurch City in the 2010 & 2011 earthquakes.  The court dismissed New India’s argument that insurance cover was voided because of non-disclosure.
Council claims were made through the Local Authority Protection Programme Disaster Fund.  Since the 1990s, central government has agreed to carry 60% of repair costs for infrastructure assets following natural disasters.  Individual local authorities are responsible for the rest.  The Fund is an umbrella scheme providing insurance cover to participating local authorities for their 40% balance of repair costs.  It covers “horizontal” infrastructure: water mains and sewers; not roads and bridges.
The court was told New India Assurance Company was one of the reinsurers contracted to the Fund when the Canterbury earthquakes hit.  Faced with claims for $17.5 million, New India denied liability on grounds of non-disclosure.
Insurance law allows an insurer to void a policy and refuse to pay out if there was a failure to disclose any material facts at the time the insurance policy was taken out or cover was renewed.  Insurers say they cannot assess the risk unless they have all the material information and if they were misled as to the level of risk they can back out.
For customers, unaware of what facts might be considered material, this rule bears similarities to an internet scam: fees are paid in advance for promises which are never honoured.
New India said a re-writing of the Fund’s trust deed in 2007 was a material event and should have been disclosed.  The trust deed sets out the relationship between the Fund and participating local authorities and describes what claims will be accepted. New India said the re-writing potentially increased the amounts any reinsurer would be required to pay.  The Fund said there was no material difference between the old and the new trust deed.  Associate Judge Doogue agreed.  Under both deeds, the trustees had a discretion in determining what claims were covered.  Replicating this discretionary power in the re-written deed did not expose insurers to any greater risk.
All up, the Fund made earthquake related claims totalling $180 million on behalf of Waimakariri Council and Christchurch City.
NZ Local Authority Disaster Fund v. New India Assurance – High Court (6.06.13)
13.027