Surton Harding v Insurance Company of the West Indies Ltd
| Jurisdiction | Jamaica |
| Judge | Simmons J |
| Judgment Date | 20 March 2013 |
| Neutral Citation | [2013] JMSC Civ 33 |
| Court | Supreme Court (Jamaica) |
| Date | 20 March 2013 |
| Docket Number | IN CIVIL DIVISION CLAIM NO. 2009 HCV 03459 |
[2013] JMSC Civ. 33
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN CIVIL DIVISION CLAIM NO. 2009 HCV 03459
Mr. Ruel Woolcock instructed by Ruel Woolcock & Company for the claimant.
Mr. Maurice Manning and Miss Arlene Williams instructed by Nunes Scholefield DeLeon & company for the defendant.
INSURANCE LAW — AVOIDANCE OF POLICY BY INSURER — NON-DISCLOSURE
This action arises out of the defendant's/insurers' refusal to indemnify the claimant for damage to his property. The policy which was in force, provided coverage for damage by fire and other perils.
The claimant is a businessman engaged in the manufacture of furniture. This business is situated at 32 Pelican Parade, Kingston 11 which is also his residence.
On or about the 20 th April, 2009 there was a fire at the said premises which resulted in damage to the claimant's dwelling house and its contents. A second building at the back of the premises which was used for the manufacture of furniture along with its contents was completely destroyed.
The claimant notified the defendant of his loss orally through Guardian Insurance Brokers (the Broker) and on the 21 st April 2009 submitted a written claim. The defendant has refused to honour the claim.
On October 20, 2009 the claimant filed an action against the Defendant, the Insurance Company of the West Indies Limited in which he sought the following:
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(i) A Declaration that a valid and enforceable Contract of Insurance exists between the Claimant and the Defendant in respect of:
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(a) The Claimant's house situated at 32 Pelican Parade, Kingston 11 in the parish of Saint Andrew and its contents; and
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(b) The Claimant's stock in trade situated at 32 Pelican Parade, Kingston 11 in the parish of Saint Andrew.
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(ii) An Order that pursuant to the said Contract of Insurance the Defendant pays over to the Claimant the sum of $17,700,000.00 for the loss of the Claimant's said house, household contents and stock in trade which were destroyed by fire on the 20 th day of April, 2009.
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(iii) An Order that interest of 12% or such other interest as this Honourable Court deems just be paid upon the said sum from the 20 th day of April 2009 to the date of payment.
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(iv) The Costs of this application being $56,000.00 be paid by the Defendant to the Claimant.
Mr. Harding also alleged in his pleadings that the Broker was the agent of the defendant.
The defendant denied that the Broker was its agent and has stated that the said broker was the agent of the claimant. However, it has admitted that a claim was received from the claimant and that it refused to honour that claim.
The defendant has alleged that the claimant breached the contract of insurance and in particular conditions 4 (a) and 8 (a). The Particulars of the breach of contract are stated to be as follows:-
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(a) Failing to take all reasonable precautions to prevent damage to the subject premises;
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(b) Using the property in a manner that was manifestly unsafe and which increased the risk of damage by fire;
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(c) Using the subject premises that was wired for residential use only for both commercial and residential use;
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(d) Failing to ensure that the electrical wiring at the premises was suitable for both residential and commercial use;
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(e) Failing to maintain the said property so as to prevent damage by fire.
The defendant has also filed a counterclaim in which it seeks the following declarations:-
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(a) That Defendant is entitled to avoid Fire and Special Perils Policy (Material Damage) of insurance number FF34–369244 issued in the name of the Claimant in respect of premises located at 32 Pelican Parade, Kingston 11 on the grounds that the said policy of insurance was obtained by the non-disclosure and/or misrepresentation of material facts;
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(b) By virtue of the said avoidance of Policy the Claimant is not entitled to indemnity from the First Defendant.
In its counterclaim the defendant has alleged that the claimant failed to disclose that the building was not properly wired and that the electricity had been disconnected by the Jamaica Public Service Company (J.P.S. Co). It is further alleged that the claimant was being supplied with electricity without the knowledge of the J.P.S. Co at the time when he entered into the contract with the defendant. The result of this it said, was an increase in the risk of fire.
The defendant has also alleged that although the premises were being used for commercial purposes it was only wired for residential use and that this increased the risk of fire.
It was also stated that the claimant failed to disclose that there was a work shed on the premises. The presence of this structure was said to be unsafe and hazardous to the risk for which the property was insured.
The information pertaining to the electricity supply, wiring and the presence of the shed are stated to be material facts which the claimant had a duty to disclose to the defendant. It was further stated that the disclosure would have assisted the defendant to ascertain the full extent of the risk and to make a decision whether or not to accept that risk.
The particulars of non-disclosure are as follows:-
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(a) Failing to disclose that the supply of electricity to the property was unauthorized and/or illegal;
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(b) Failing to disclose that the property was electrically wired for residential use only;
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(c) Failing to disclose that the property was not wired for commercial use;
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(d) Failing to disclose that the electrical wiring for residential purposes was being used for both residential and commercial purposes;
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(e) Failing to disclose that the property was not approved or certified for the purposes for which it was being used;
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(f) Failing to disclose that there was woodwork shed that was attached to the structure(s), part of subject matter of the Policy.
The claimant in his defence to the counterclaim has denied that the cause of the fire was electrical. He has also stated that the defendant had full knowledge with respect to the buildings on the premises and the fact that they were wired for residential use. It has also been denied that the electricity supply to the premises was illegal and that there was a failure to disclose material facts to the defendant.
The claimant in his evidence stated that the premises consisted of two main buildings and that the building at the back was connected to an area which was used for the manufacture of furniture. Mr. Harding also gave evidence that in 2002 his family which is comprised of six persons lived in the first building which has five bedrooms.
He stated that he commenced operating his business at the premises in 1990 and listed Courts Jamaica Limited as one of his clients. His evidence is that although he had several machines which required electrical power, they were never in constant use.
He also stated that there were four breaker panels, one for the house and three for the furniture shop. The wiring was said to have been done by a licensed electrician. Mr. Harding also stated that there were two meters on the premises but the second one was not installed. There were also two pot heads on the premises.
The claimant admitted that he did not provide any information to the defendant in respect of the wiring at the premises or the incomplete meter as he was not asked to do so. He did agree that the state of the wiring would be an important consideration for a policy which provided coverage for damage done as a result of fire. He also stated that the wiring for the incomplete meter was done after he had taken out the policy as it was his intention to get a separate meter for the second building.
Mr. Harding's evidence is that in 2002 he applied for his own account with the J.P.S. Co. and the premises was rewired. At that time the premises was being used for residential purposes. He indicated that the purpose of the rewiring was to accommodate residential as well as commercial activities.
Mr. Harding also gave evidence that the Fire and Special Perils policy which he took out on the 22 nd April 2008 with the defendant covered the buildings, their contents, plant, machinery and stock in trade. He did not recall any question being asked on the proposal form with respect to the electrical wiring. He also stated that no one from the defendant company had ever visited the premises prior to April 2009.
On the 20 th April 2009 the premises was gutted by fire and its contents destroyed. He stated that his income was approximately $250,000.00 per month. He also indicated that at that time, he was in arrears with the J.P.S. Co. His evidence is that a few weeks before the fire someone from the J.P.S. Co. had come to disconnect his electricity supply but he persuaded them not to do so. He asserted that at the time of the fire his electricity supply was lawfully connected and he had received bills up to the 30 th June 2009.
In cross examination, the claimant stated that he supplied furniture to large companies, specifically Courts Jamaica Limited and Bargain Furniture. The furniture was stored in the second building on the premises which had three rooms. Goods were also stored in that building. He indicated that he began to operate a business at the premises and that prior to that it was only used for residential purposes.
Mr. Harding disclosed that he had three circular saws, two jig saws, two drills, a rotor, an air compressor, a band saw, a lathe and two sanding machines. There were three air conditioning units at the house, three or four televisions, a refrigerator, ceiling fan and other small appliances. He also had a generator.
The...
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