Brown (Adolph) v West Indies Alliance Insurance Company Ltd

• Jurisdiction: Jamaica
• Judge: Mangatal J:
• Judgment Date: 04 June 2010
• Judgment citation (vLex): [2010] 6 JJC 0403
• Court: Supreme Court (Jamaica)
• Date: 04 June 2010

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

CLAIM NO. 2007 HCV 03483

BETWEEN

ADOLPH BROWN

CLAIMANT

AND

WEST INDIES ALLIANCE INSURANCE COMPANY LIMITED

DEFENDANT

SUMMARY JUDGMENT APPLICATION UNDER PART 15 OF THE C.P.R. - TIME BAR PROVISION IN INSURANCE POLICY - WHETHER INSURER ENTITLED TO RELY ON CLAUSE - WHETHER CLAUSE VOID AS BEING CONTRARY TO PUBLIC POLICY - WHETHER APPLICATION NOTICE SUFFICIENTLY IDENTIFIED ISSUES-RELIANCE ON WITHOUT PREJUDICE CORRESPONDENCE — WHETHER CLAIMANT HAS NO REAL PROSPECT OF SUCCEEDING ON THE CLAIM

IN CHAMBERS

Mr. Alton Morgan and Ms. Marlene Uter instructed by Alton Morgan & Co. for the Claimant.

Mrs. Tashia Madourie instructed by Nunes Scholefield DeLeon & Co. for the Defendant.

CIVIL PROCEDURE - Summary judgment - Application under Civil Procedure Rules, Part 15 - Time Bar provision in insurance policy - Whether insurer entitled to rely on clause - Whether clause void as being contrary to public policy - Whether application notice sufficiently identified issues - Reliance on without prejudice correspondence - Whether claimant has no real prospect of succeeding on the claim

Mangatal J

1 1. This is an application by the Defendant West Indies Alliance Insurance Company Limited "W.I.A." for summary judgment against the Claimant "Mr. Brown" pursuant to Part 15.2. of the Civil Procedure Rules 2002 "the C.P.R.". The application is made on the ground that Mr. Brown has no real prospect of succeeding on the Claim.

2 2. Mr. Brown has also filed an application dated December 17 ^th 2009 for the following:

• 1. A declaration that the term of the policy between the parties which provides that no legal action may be brought against W.I.A. unless the action is started within one year of the incident causing the loss is void;

• 2. That W.I.A.'s application for summary judgment filed on the 17 ^th of September 2008 and set for hearing on the 18 ^th January 2010 be struck out or dismissed;

• 3. That Summary Judgment be entered in favour of Mr. Brown against W.I.A.;

• 4. In the alternative, that the application for summary judgment filed by W.I.A. be stayed, pending mediation.

3 3. The time allotted for the hearing of both of these applications on the 18 ^th of January 2010 was woefully short, and so I ordered the parties to file written submissions so that the parties would not suffer any further delay in having the matter adjudicated. There was therefore no actual oral hearing. I have read and considered all of the Affidavits and written submissions filed by the parties, the last submission having been received as recently as May 2010.

4 THE CLAIM

5 4. Mr. Brown has claimed against W.I.A. as his insurer under Policy Number KI MAR 271582 in relation to damage to his Stamas Liberty Cabin Cruiser motor vessel "Kidolph III" which occurred on the 2 ^nd September 2001. On that date, Mr. Brown's motor vessel accidentally hit a submerged concrete stake while at sea. On or about September 2001, Mr. Brown made a claim against W.I.A. and he claims that W.I.A. has refused to compensate him for the loss incurred and for which he had contracted with W.I.A. under the policy of insurance. Mr. Brown asserts that W.I.A. has acted in breach of the contract of insurance by failing to compensate him for expenses incurred in repairing the vessel. He claims compensation for the cost of repairs in the sum of JA $1,877,252.85 and U.S. $ 32,709.85.

6 THE DEFENCE

7 5. There are several grounds of Defence filed, but the one with which this application for summary judgment is buttressed concerns Section G of the Policy Contract. Section G states:

No legal action may be brought against (W.I.A.) unless there has been compliance with all terms of this policy and the action is started within one year after the accident causing the loss.

8 6. W.I.A. relies upon this section and the fact that this claim was filed more than one year after the accident which occurred on the 2 ^nd September 2001. In fact this claim was filed on August 30 ^th 2007 and accordingly W.I.A. deny any liability to compensate Mr. Brown under the policy.

9 THE AFFIDAVIT EVIDENCE

10 7. In his 1 ^st Affidavit Mr. Brown states that he has been advised by his Attorneys at Law and verily believes that W.I.A.'s attempt to exclude liability by stating that the action had to be brought within a year after the accident has occurred seeks to oust the jurisdiction of the Court and ought to be deemed void and contrary to public policy. He states that he is further advised that the law provides that actions for breach of contract are brought within 6 years of the date the cause of action arose and Mr. Brown states that his claim was filed within this 6 year period. In paragraphs 11 to 23, Mr. Brown describes the nature of the accident and damage. He states:

• 11. That I decided to engage the services of Mr. Richard Machado, a highly experienced Marine Specialist to prepare an estimate of the parts and labour required to restore the vessel.

• 12. That Mr. Machado carried out a thorough inspection of the damage and submitted a detailed estimate totaling $3,412,050.00. I exhibit hereto marked "AB 3" a copy of the said estimate dated September 13, 2001.

• 13. That on October 22, 2001, I received a letter from Crawford Jamaica Ltd., in which they concluded that the two engines of the vessel were not in need of replacement and offered on behalf of the insurers, a mere $475,350.00 in settlement of the claim. I exhibit hereto marked "AB 4" a copy of the said letter.

• 14. That owing to my concerns regarding possible damage to my engines I sought further professional advice from H & L Agri & Marine Co. Ltd. I exhibit hereto marked "AB 5" a copy of my letter to them dated October 30, 2001.

• 15. That I received a response from H & L Agri & Marine Co. Ltd. by letter dated October 31, 2001 which recommended that the power head and engines be replaced on the basis that when engines become submerged at sea the integrity of the power head and engines and electrical system will be compromised. I exhibit hereto marked "AB 6" a copy of the said letter.

• 16. Based on this advice, I wrote to the insurers rejecting the offer made by Crawford Jamaica Ltd.

• 17. That for my further guidance, I requested and obtained the costs of two (2) Mercury Outboard Motors from H & L Agri & Marine Co. Ltd. I exhibit hereto marked "AB 7" a copy of letter dated November 13, 2001 outlining the costs.

• 18. That I had meetings with representatives of the Defendant company over a protracted period and was advised in the end that my claim was too high and needed adjustment.

• 19. That on the 27 ^th November 2001, I received communication from McLarens Toplis offering $588,350.00 in settlement of the claim.

• 20. That based on the recommendation from Mr. Machado and H & L Agri & Marine Co. Ltd, I felt that this amount was grossly inadequate and consequently I refused the offer.

• 21. On the 27 ^th December 2001, I received a further letter from McLarens Toplis advising that on grounds of findings of Mariserve Jamaica Ltd., Specialist Marine Surveyors, they were willing to make an offer of $449,477.50 after deduction of the policy excess of $25,000.00.

• 22. That in the circumstances, I was not prepared to accept the said offer and I wish to point out that the assessment could not have been comprehensive, as the Surveyors had no access to examine the cabin of the vessel.

• 23. That during this period, I was deprived of the use of my vessel and was incurring additional costs to have it taken care of at the dock. I exhibit hereto marked "AB 8" a copy of letter from the Royal Jamaica Yacht Club dated May 6, 2002 outlining dry dock charges.

11 8. After the matter had come on for hearing and submissions had been filed by both sides, Mr. Brown filed a further Affidavit, his 3 ^rd Affidavit, on the 5 ^th February 2010. In that Affidavit, at paragraphs 2-10, Mr. Brown states as follows:

• 2. That I crave leave of this Honourable Court to provide evidence of correspondence concerning my claim for indemnity against the Defendant herein. That the relevant letters are exhibited hereto and marked "AB 13" for identification.

• 3. That the letters show that extensive negotiations for settlement of my claim took place between October 2001 and December 2002.

• 4. That I proceeded with the negotiations with the Defendant in good faith in anticipation that a reasonable offer would be made to settle my claim.

• 5. That the negotiations continued for more than one year after the claim arose.

• 6. That given the nature and extent of the negotiations I was not afforded enough time to seek legal redress pursuant to the contract of insurance.

• 7. That I was advised by Claims Administrators Ltd. by letter dated December 23, 2002 that I had no options available to claim against the Defendant and no alternative but to accept the offer of $449,477.50.

• 8. That I declined to accept the Defendant's offer as based on the professional advice received I knew that the amount offered would not be sufficient to repair my vessel.

• 9. That in frustration and in order to have the use of my vessel I proceeded to do the repairs on my own.

• 10. That given the expense involved, I had to do the repairs little by little and accordingly the repairs took place over an extended period from 2003 to 2007, after which I proceeded to take legal action.

12 9. Driven to respond to this late Affidavit filed by Mr. Brown, Mrs. Karen Bhoorasingh, W.I.A.'s General Manager filed an Affidavit on March 26 2010, and in paragraphs 3-5 she states:

• 3. That I have seen the Further Affidavit by the Claimant filed February 5, 2010 to which he has exhibited several letters which he contends evidences the existence of an extended...