Acciona Infrastructure Australia Pty Ltd v Zurich Australian Insurance Limited [2023] FCAFC 47

Acciona Infrastructure Australia Pty Ltd v Zurich Australian Insurance Limited [2023] FCAFC 47

Exclusion 3.12 was concerned with whether loss or damage to earthwork materials or pavement materials caused by rain was due to an unusually intense rainfall event. The logical and businesslike operation of the clause required the intensity of that rainfall to be assessed by reference to a weather station proximate to the place where the damage was sustained, not a potentially distant point on the Project Site. The text, context and use of the more specific expression "location insured", rather than "Project Site" or "situation", supported construing it as the place within the Project Site where the loss or damage in respect of which the claim is made occurred.

Jurisdiction
Australia
Judgment Date
28 March 2023
Procedural Posture
Insurance Policy Construction Dispute Concerning a Separate Question / Determination by the Full Court of a Question Referred by Direction of the Chief Justice Pursuant to S 20(1 A) of the Federal Court of Australia Act 1976 (cth)
Outcome
Declaration made in favour of the Insurers on the separate question; applicants ordered to pay the respondents' costs of the determination of the separate question.
Legal Topics
['construction and Interpretation of Insurance Policy' 'meaning of "location Insured"' 'construction Risks Material Damage Project Insurance Policy' 'rainfall Exclusion and Exception' 'separate Question']
['insurance' 'commercial Contracts' 'construction'] ['construction and Interpretation of Insurance Policy' 'meaning of "location Insured"' 'construction Risks Material Damage Project Insurance Policy' 'rainfall Exclusion and Exception' 'separate Question']

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Procedural Posture

Insurance Policy Construction Dispute Concerning a Separate Question / Determination by the Full Court of a Question Referred by Direction of the Chief Justice Pursuant to S 20(1 A) of the Federal Court of Australia Act 1976 (cth)

Legal Issues

  1. 1 ['Whether the expression "location insured" in Exclusion 3.12 meant the whole Project Site or the place where the insured loss or damage occurred.' 'Whether the exception to the exclusion for rain damage to earthwork materials and pavement materials was to be assessed by reference to the weather station nearest to the Project Site or nearest to the location of the damage.']

Ratio Decidendi

Exclusion 3.12 was concerned with whether loss or damage to earthwork materials or pavement materials caused by rain was due to an unusually intense rainfall event. The logical and businesslike operation of the clause required the intensity of that rainfall to be assessed by reference to a weather station proximate to the place where the damage was sustained, not a potentially distant point on the Project Site. The text, context and use of the more specific expression "location insured", rather than "Project Site" or "situation", supported construing it as the place within the Project Site where the loss or damage in respect of which the claim is made occurred.

Court Disposition

Declaration made in favour of the Insurers on the separate question; applicants ordered to pay the respondents' costs of the determination of the separate question.

Orders

  • ['It is declared that, on its proper construction, the term "location insured" as it appears in Exclusion 3.12 of a written policy of insurance dated 27 June 2014 issued by the respondents to the Named Insured being Roads and Maritime Services means the location of the loss or damage caused by the event referred to...