Eckard and Another v Outsurance Insurance Company Limited and Others (74991/16) [2020] ZAGPPHC 392 (30 July 2020)

Eckard and Another v Outsurance Insurance Company Limited and Others (74991/16) [2020] ZAGPPHC 392 (30 July 2020)

The court found that the second applicant's claim for indemnification under the insurance policy is contingent and only arises once liability to the minor child is established. Prescription under the policy does not run until a fixed claim is made. The delay in serving the third party notice was reasonably explained by incorrect legal advice and financial constraints, and the first respondent was aware of the ongoing dispute. The non-disclosure of prior incidents was not material, as the insurer continued coverage and the incidents would not have resulted in claims. The first applicant lacked locus standi as he was not a party to the insurance agreement, but no costs order was made...

Citation
[2020] ZAGPPHC 392
Parties
Applicant: George Norman Eckard; Applicant: Arendse Sportskool Avontuur Sentrum & Game Lodge; Respondent: Outsurance Insurance Company Limited; Respondent: Johannes Petrus Botha; Respondent: Gerna Botha; Respondent: Innospan Investments (Pty) Limited t/a Southdown College; Respondent: Cornelius Servaas Eckhard
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
30 July 2020
Case Number
74991/16
Procedural Posture
Leave to Appeal / Application for Leave to Serve Third Party Notice After Close of Pleadings
Outcome
First applicant's application dismissed with no order as to costs; second applicant granted leave to serve third party notice on first respondent; costs to be costs in the cause.
Judges
MNGQIBISA-THUSI
Legal Topics
Third Party Procedure, Insurance Indemnity, Contractual Prescription, Non Disclosure, Prima Facie Case
Civil Procedure Commercial and Corporate Third Party Procedure Insurance Indemnity Contractual Prescription Non Disclosure Prima Facie Case

Case Brief

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Parties

George Norman Eckard

Applicant

Arendse Sportskool Avontuur Sentrum & Game Lodge

Applicant

Outsurance Insurance Company Limited

Respondent

Johannes Petrus Botha

Respondent

Gerna Botha

Respondent

Innospan Investments (Pty) Limited t/a Southdown College

Respondent

Cornelius Servaas Eckhard

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Serve Third Party Notice After Close of Pleadings

Legal Issues

  1. 1 Whether the second applicant is entitled to serve a third party notice on the first respondent after close of pleadings.
  2. 2 Whether the insurance claim by the second applicant has prescribed under the policy terms.
  3. 3 Whether the second applicant made out a prima facie case for indemnification under the insurance contract.

Ratio Decidendi

The court found that the second applicant's claim for indemnification under the insurance policy is contingent and only arises once liability to the minor child is established. Prescription under the policy does not run until a fixed claim is made. The delay in serving the third party notice was reasonably explained by incorrect legal advice and financial constraints, and the first respondent was aware of the ongoing dispute. The non-disclosure of prior incidents was not material, as the insurer continued coverage and the incidents would not have resulted in claims. The first applicant lacked locus standi as he was not a party to the insurance agreement, but no costs order was made...

Court Disposition

First applicant's application dismissed with no order as to costs; second applicant granted leave to serve third party notice on first respondent; costs to be costs in the cause.

Orders

  • The first applicant’s application is dismissed. No order as to costs is made.
  • The second applicant is granted leave to serve a third party notice on the first respondent, Outsurance Insurance Company Limited, as the sixth third party to the main action (under case number 74991/2016).