BURNETT OR GRANT AGAINST MARCIUS & Ors [2018] ScotCS CSOH_34 (05 April 2018)

BURNETT OR GRANT AGAINST MARCIUS & Ors [2018] ScotCS CSOH_34 (05 April 2018)

The exclusion for 'deliberate acts wilful neglect or default' in the insurance policy applies only where the outcome giving rise to liability was the intended objective; as the first defender did not intend to cause death and the pursuer's case is based on negligence, the exclusion does not apply. The wrongful arrest extension is irrelevant as there was no arrest. The insurer is obliged to indemnify the insured for liability to the pursuer.

Citation
[2018] ScotCS CSOH_34
Parties
Pursuer: Mrs Fiona Elsie Burnett or Grant; First Defender: Jonas Marcius aka Jonas Melnikovas; Second Defender: Prospect Security Limited (In Liquidation); Third Defender: Blu Inns Limited; Fourth Defender: International Insurance Company of Hanover Limited
Jurisdiction
Scotland
Judgment Date
05 April 2018
Procedural Posture
Civil Action for Indemnity Under Insurance Policy (derivative Claim Under Third Party (rights Against Insurers) Act 2010) / Opinion Following Debate on Policy Construction and Exclusions
Outcome
Declarator granted in favour of pursuer; insurer obliged to indemnify under the policy.
Legal Topics
Interpretation of Insurance Policy Exclusions, Vicarious Liability, Negligence, Wrongful Arrest, Contra Proferentem Rule
Insurance Law Delict (tort) Contract Law Interpretation of Insurance Policy Exclusions Vicarious Liability Negligence Wrongful Arrest Contra Proferentem Rule

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Parties

Mrs Fiona Elsie Burnett or Grant

Pursuer

Jonas Marcius aka Jonas Melnikovas

First Defender

Prospect Security Limited (In Liquidation)

Second Defender

Blu Inns Limited

Third Defender

International Insurance Company of Hanover Limited

Fourth Defender

Procedural Posture

Civil Action for Indemnity Under Insurance Policy (derivative Claim Under Third Party (rights Against Insurers) Act 2010) / Opinion Following Debate on Policy Construction and Exclusions

Legal Issues

  1. 1 Whether the insurance policy exclusion for 'deliberate acts wilful default or neglect' applies to the defender's conduct
  2. 2 Whether the policy's wrongful arrest extension applies to the circumstances
  3. 3 Whether the insurer is obliged to indemnify under the policy given the facts

Ratio Decidendi

The exclusion for 'deliberate acts wilful neglect or default' in the insurance policy applies only where the outcome giving rise to liability was the intended objective; as the first defender did not intend to cause death and the pursuer's case is based on negligence, the exclusion does not apply. The wrongful arrest extension is irrelevant as there was no arrest. The insurer is obliged to indemnify the insured for liability to the pursuer.

Court Disposition

Declarator granted in favour of pursuer; insurer obliged to indemnify under the policy.

Orders

  • Decree of declarator granted in terms of the first conclusion.
  • Cause appointed to call at a By Order hearing for further procedure if required.