Insurance Company of the West Indies v Omar Gushman

• Jurisdiction: Jamaica
• Judge: Cresencia Brown Beckford, J
• Judgment Date: 26 February 2016
• Neutral Citation: [2016] JMSC Civ 41
• Docket Number: CLAIM NO. 2012 HCV 03340
• Court: Supreme Court (Jamaica)
• Date: 26 February 2016

[2016] JMSC Civ41

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2012 HCV 03340

Between

Insurance Company of the West Indies

Claimant

and

Omar Gushman

Defendant

Miss Michelle Shand Forbes for the Claimant.

Miss Jeanne Frances Barnes instructed by the Kingston Legal Aid Clinic for Defendant.

INSURANCE LAW - Insurance contract - Non-disclosure in proposal form - Whether declaration constitutes a warranty - Liability of insurers

Cresencia Brown Beckford, J

INTRODUCTION

1 [1] This claim by way of Fixed Date Claim Form is brought by the claimant, the Insurance Company of the West Indies (ICWI) against the defendant Mr. Omar Gushman in respect of whose 2002 Nissan AD motor vehicle registered 9761 FR the claimant issued a policy of Insurance. This motor vehicle was involved in an accident and the claimant seeks the following relief:

1

A declaration that it is entitled to avoid the Policy of Insurance No. 34740287/1 and not to indemnify the defendant in respect of loss, damage, expenses or claims from third parties incurred as a result of an accident involving the defendant's motor vehicle on the 18 th day of July 2010, along Burke Road, Spanish Town in the Parish of St. Catherine, on the grounds of misrepresentation and/or non-disclosure of material facts. 2. A declaration that the Policy of Insurance No. 34740287/1 is void for breach of warranty of contract by the defendant. 3. A declaration that the defendant is in breach of the conditions of the Policy of Insurance accordingly entitling the claimant to avoid/or repudiate same, and to avoid any liability there under.

BACKGROUND

2 [2] On the 7 ^th day of January 2010 the defendant applied to the Insurance Company of the West Indies (ICWI) for insurance coverage for a 2002 Nissan AD motor vehicle registered 9761 FR by completing a proposal form in which he proposed that the vehicle would be used solely for social, domestic and pleasure purposes including transit to and from work. He expressly indicated that the vehicle would not be used for the transport of passengers for reward. He further accepted that the policy would only cover the permitted use.

3 [3] As a result ICWI entered in a contract of insurance for the period 12 ^th April 2010 to 6 ^th January 2011. The policy expressly did not cover use of the vehicle for hire or reward. A Certificate of Insurance was issued to the insured, the defendant.

4 [4] It is undisputed that on July 18, 2010 the defendant's vehicle, which was being driven by him at the time, was involved in a collision with a Mazda Demio motor vehicle registered 5153 EE on Burke Road in Spanish Town, St. Catherine. The defendant reported the matter to his insurer, the claimant, the following day.

5 [5] On February 18, 2011, ICWI received a demand letter on behalf of a passenger who was travelling in the Mazda Demio motor vehicle involved in the accident with the defendant. The company received another demand letter on August 10, 2011 on behalf of the owner and driver of the Mazda Demio motor vehicle involved in the collision.

6 [6] ICWI contends that they are entitled to refuse to indemnify the Defendant in respect of any loss, damage, expense or claims from third parties arising out of the accident as Mr. Gushman was operating his vehicle as a Public Passenger Vehicle (PPV) in breach of the policy of insurance taken out by him.

7 [7] The defendant has denied that he was operating his motor vehicle as a PPV.

CLAIMANT'S EVIDENCE

8 [8] The claimant's case is that a Private Commercial Car insurance policy was issued to the defendant to be used in connection with his business as a mason based on the Proposal Form completed and signed by him. ICWI asserts that on the faith of this Proposal Form, and in reliance on the truth of the statements and information contained therein, it concluded a Contract of Insurance with the defendant.

9 [9] The proposal and declaration made by the defendant formed the basis of the Contract of Insurance and were incorporated into the policy. ICWI's liability to make any payment under the policy would therefore be conditional upon compliance with its terms and conditions by the defendant and upon the truth and accuracy of the information given by him.

10 [10] The claimant relied on the affidavit of Dwight Cunningham, sworn on the 14 ^th June 2012, which stood as his evidence in chief. He was not cross-examined. Attached as exhibits to this affidavit was the Proposal Form dated 7 ^th January 2010 signed by the defendant, Motor Vehicle Policy Schedule, Certificate of Insurance and Private Commercial Car Policy. Also exhibited was a statement of Miss Jennifer Sterling, one of the passengers in the defendant's motor vehicle at the time of the accident. This statement was purportedly given to an investigator, one Miss Christine Burgess. The statement was admitted into evidence as Exhibit 1. In the statement Miss Sterling outlined that she had agreed to pay $120.00 for the trip in the defendant's motor vehicle. However she had not paid him as yet for the chartered trip when the accident occurred.

11 [11] Mr. Delona Davis, a private investigator employed to Binoc Visions Investigations Limited (BINOC), the company contracted by ICWI to conduct investigations into the circumstances surrounding the motor vehicle accident, was the next witness. He outlined that he contacted the defendant, who during their conversation admitted that he used his motor vehicle as a taxi plying the Sligoville to Spanish Town route. He further informed him that he charged between $110.00 and $120.00 per person for each trip. Mr. Davis also arranged a chartered trip with the defendant for $5000.00

12 [12] It is the claimant's contention, based on this evidence, that the defendant was operating his vehicle as a PPV and so operated his vehicle on the 18 ^th July 2010.

DEFENDANT'S EVIDENCE

13 [13] The defendant admitted that there were three other persons in his motor vehicle at the time of the accident. However, he explained that he was going to the wedding of Miss Tricia Lewinson in which his daughter was participating, and insisted that Miss Lewinson had asked him to transport his passengers, who were her co-workers, to the wedding. He insisted that no financial arrangements were made for their travel. These persons were known to him before. From time to time, though not regularly, he would give them lifts.

14 [14] Under cross-examination the defendant stated that “during the time” he drove another car, a Toyota Camry, which he ran as a taxi in the community. He said his occupation was that of a mason. He mainly worked alongside an electrician doing the masonry. When he was not working he would ask if he could drive other people's cars as a taxi. He never drove his own car as a taxi. He said he always worked for other people as a taxi driver. He recalled that drove different vehicles for one “Bigga” for two years on and off until about 2013.

15 [15] All three passengers in the defendant's motor vehicle gave evidence regarding the circumstances surrounding them being transported in his vehicle. They are Tamar McNeil, Tricia Pitt and Jennifer Sterling. They were all to be guests at the wedding of Miss Tricia Lewinson.

16 [16] Miss McNeil's evidence was that prior to the wedding she spoke to Miss Lewinson who said she would contact the defendant who was also to be a guest at her wedding, and organize for her to travel with him to the wedding. Miss Lewinson later informed her that she had made contact with the defendant and that he agreed to give her a ride to the wedding. There was no charge told to her nor was there mention of any charge from the defendant. She said that she has known the defendant for many years, having grown up in the same community.

17 [17] On cross-examination Miss McNeil said that it was not her first time travelling in the defendant's vehicle. She knew him to run taxi. She had travelled with the defendant occasionally before from Simon to Spanish Town paying a fare of $120.00 at that time. He stopped driving a taxi after he had an accident with the car. She had also travelled with him in his personal car.

18 [18] Miss Pitt gave much the same evidence and in cross-examination she said Miss Lewinson told her she could ask him for a ride. This she did, making the request for all three passengers. Miss Lewinson did not make the arrangements with the defendant. Miss Pitt also stated that she was aware that the defendant used to run a red car as a taxi but noted that he apparently stopped. She doesn't recall when he stopped but the last time she travelled with him the fare was $120.00 from Simon to Spanish Town. She expressed that the defendant did not operate the red motor vehicle he used as a taxi for himself, and that the car belonged to someone else. He was someone she knew well being from adjoining communities and having attended the same school.

19 [19] The next witness was Miss Jennifer Sterling whose evidence in chief was again much the same as the others. In cross-examination she first said she had only taken the defendant's car once, to a shop. When confronted with her statement given to the investigator she admitted travelling with him when he was driving a red plate taxi. She was not asked for money for the trip to the wedding but volunteered to contribute to gas.

20 [20] The evidence of Miss Sterling contradicts her statement which is exhibit 1. Under cross-examination she said in cross-examination that she did not recall giving a statement to the investigator. However she recalled that the investigator came to the school where she was employed and asked her about the accident. She denied giving the investigator a statement. When pressed she stated that during the interaction with the investigator she signed something that she did...