Advantage General Insurance Company Ltd v Shawn Myrie
| Jurisdiction | Jamaica |
| Judge | D.O. McIntosh, J |
| Judgment Date | 17 February 2012 |
| Neutral Citation | [2012] JMSC Civ 18 |
| Docket Number | CLAIM NO. 2009 HCV 00574 |
| Court | Supreme Court (Jamaica) |
| Date | 17 February 2012 |
[2012] JMSC Civ 18
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN CIVIL DIVISION
D.O. McIntosh, J
CLAIM NO. 2009 HCV 00574
Mrs. Suzette Campbell instructed by Campbell & Campbell for Claimant
Ms Martina Edwards instructed by SHELARDS for Defendant
Insurance company seems to avoid liability as a result of Defendant's allege breaches of insurance policy — Court to decide if the Defendant have an insurable interest in motor vehicle
The Claimant, Advantage General Insurance Company Limited, is seeking a declaration from the court that the Defendant has breached a policy of insurance numbered 251781/001 issued by the company to the Defendant and which provided coverage for the Defendant's Toyota Sequioa motor vehicle.
The Claimant alleges that the policy of insurance has been breached by the Defendant for the following reasons:
(1) The Defendant sold the vehicle to his brother Jody Myrie and therefore had no insurable interest in it prior to it being stolen.
(2) He failed to inform the Claimant that he had sold the vehicle and is therefore in breach of the policy of insurance which requires him to give full disclosure of all matters relating to the vehicle during the period of the policy.
(3) The vehicle was covered under a private motor policy of insurance but it was being used for and in the business of a duly incorporated company, Joshan Blocks, which has a different legal personalty from the Defendant.
(4) The Defendant is in breach of the warranty given as to the truth of all statements made by him on the proposed form at the time he applied for insurance.
The Claim was begun by Fixed Date Claim Form:
(a) Mr. Justice Brooks at the pre-trial review on the 4th October 2010 ordered that the claim was to be treated as if started by claim form; and
(b) The Affidavits filed and deposition taken shall stand in the place of pleadings and witness statements.
The basis on which the motor vehicle policy of insurance was issued was that the Defendant Shawn Myrie was the owner and had an insurable interest in the Toyota motor vehicle licenced 4355 ER.
It is an accepted principle of insurance law that if the insurer has undertaken to indemnify the assured against a pecuniary loss caused by or arising from particular risks, an interest in the thing insured is required.
MacGillivray on Insurance Law has defined an insurable interest as “ the insured's pecuniary interest in the subject-matter of the insurance.” The text went on to say that to establish an insurable interest “the insured must be so situated that he will suffer economic loss as the proximate result of damage to or destruction of the property.”
In Routh v Thompson (1890) 11 East 428, 433 the court described an insurable interest as possession of a legal or equitable right in property.
The English courts have gone on to hold that a bare legal title either to land or goods does not necessarily give the holder an insurable interest. Kenneth v. Boolara Butter Factory Pty. Ltd. (1953) VLR 548, 554. However mere possession could, since possession in English law is a root of title which is only defeated by a claim from the true owner.
In the instant case, the Defendant, Shawn Myrie, claims that he was the owner of the Toyota motor vehicle prior to his application for insurance coverage and up to the time of the loss of the vehicle in October 2006. He however, has not been able to prove this.
In cross examination it was admitted by Ms Ruthann Morrison for the Claimant that it was likely the company would have seen the certificate of title at the time the Defendant applied for insurance. However the company does not and did not keep the original certificate of title. It is therefore possible that the Defendant could have sold or parted with ownership of the vehicle without the knowledge of the insured.
The certificate of title presented to the court and on which the Defendant seeks to rely to prove his ownership and insurable interest, is a mere photocopy. It is submitted that the court cannot rely or act on this photocopy document to prove ownership of the vehicle, as only the original certificate duly endorsed with the Defendant's name would indicate he was the registered owner up to October 2006 when the vehicle was stolen.
No effort has been made by the Defendant to account for the absence of the original certificate, except to say that he does not have it and the court is left to speculate as to what has become of the original certificate. The court must therefore find that as a matter of fact the Defendant has not proved himself the legal owner of the Toyota motor vehicle.
Additionally the photocopy certificate of title presented to the court bears an endorsement indicating the Defendant's intention to transfer the vehicle in July 2006. When challenged on this the Defendant claims that he had been negotiating the sale of the vehicle to a Heron Thompson but the sale was never completed.
The court is urged to reject this explanation for the following reasons:
(1) The bill of sale containing the terms of the proposed sale of the vehicle to Heron Thompson was never delivered to Mr. Thompson. The Defendant admits in his own evidence that he destroyed the bill of sale.
(2) Mr. Heron Thompson was never called to give evidence regarding the alleged purchase of the vehicle and therefore the Defendant's position is unsupported by any evidence.
(3) If the Defendant is to be believed, the sale was not concluded as Mr. Heron Thompson could not get financing, yet the Defendant did the final act, of endorsing the certificate of title for transfer of the vehicle.
It is submitted, the court should find that the more provable explanation is that the Defendant sold the vehicle to his brother Jody Myrie, who by the Defendant's own admission had assisted in the preparation of the bill of sale. As stated by the Defendant to the insurance investigator, the transfer was not registered up to the time of the theft of the vehicle. It would have been unnecessary to rush to do so since Jody already had possession and custody of the vehicle and likely would have been satisfied to keep the certificate of title with the transfer endorsed on it, without doing the actual transfer given the relationship between himself and the Defendant.
The clearest evidence that the Defendant had no insurable interest in the vehicle is contained in his statement to the insurance investigator and the viva voce evidence of the investigator given by deposition. The investigator Anthony Clarke states in his deposition that the Defendant informed him that prior to the theft of the vehicle it was sold to the Defendant's brother Jody Myrie. Mr. Clarke prepared a statement containing the information given by the Defendant to which the Defendant has signed. Albeit, the Defendant is contending he did not give the information or sign the statement (since his signature only appears at the end of the statement and not on each page) the court is asked to find that he did for the following reason:
(1) The court has consistently held that where a person signs a statement he is deemed to have adopted the contents of the document. Once the signature is affixed to the document there is a presumption not only that the signatory intended to sign but also that he adopts the contents of the statement. In both instances the burden of displacing the presumption is on the signature. Saunders v Anglia Building Society (1971) AC 1004.
In the instant case the Defendant does not contend that he did not sign the statement but that he was unaware of its contents at the time he signed. It is submitted that this is not sufficient to rebut the presumption that he had an intention to sign and that he adopted the contents by signing.
The English Court in Foster v Mackinnon (1971) AC 1029 held that there is a duty on every signatory of documents to act as a reasonable man in finding out the contents before signing. Where he has failed to do so he has acted negligently and cannot rely on a plea of “non est factum” and is bound by what he has signed. The dicta of Lord Wilberforce in the case is instructive:
In my opinion, the correct rule is that … leaving aside negotiable instruments to which special rules may apply, a person who signs a document, and parts with it so that it comes into other hands, has a responsibility, that of the normal man of prudence, to take care what he signs.
His sentiments were echoed by Lord Reid, who stated:
The plea [of non est factum] cannot be available to anyone who was content to sign without taking the trouble to find out at least the general effect of the document … It is for the person who seeks the remedy to show that he should have it.
It seems it was only after signing and then speaking to his brother Jody on the telephone that an issue arose as to the contents of the statement. It is submitted that having been given an opportunity to find out the contents of the document, having signed it and returned it to the insurance investigator the Defendant cannot now claim that its contents are untrue and that he is not bound by it. It is important to note that at two sections in the statement the Defendant says the vehicle was sold to his brother.
The court is also asked to consider the following and arrive at a conclusion that the vehicle was sold prior to its theft.
The precise information contained in the Defendant's statement regarding the sale price of the vehicle, the approximate date of sale, the person to whom it was sold could only have come from...
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