Insurance Contract Law Issues Paper 2 Warranties - Law Commission
Insurance Contract Law Issues Paper 2 Warranties - Law Commission
Insurance Contract Law Issues Paper 2 Warranties - Law Commission
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6.58 The case concerned a small houseboat, kept on a lake between Texas and<br />
Oklahoma. The policy contained various stipulations that the policyholders had<br />
breached. Contrary to the terms of the policy, the insured had pledged the boat,<br />
carried passengers on several occasions and had at times leased the vessel. A<br />
fire destroyed the boat while it was moored, in circumstances that had nothing to<br />
do with the breaches of warranty. The insurers argued that, under Federal law,<br />
there was no need for a causal link between the breaches and the loss. The<br />
policyholders, however, argued that the matter should be dealt with under Texan<br />
law, where breaches of the policy would not defeat the claim unless they<br />
contributed to the loss. Eventually the case found its way to the Supreme Court,<br />
which held that insurance law was a matter for each state.<br />
6.59 The case has generated considerable debate within the US: some see it as a<br />
necessary part of the state/federal balance; others as a source of uncertainty and<br />
complexity. 32 One element behind the decision, however, may have been the<br />
Supreme Court’s unhappiness with the harshness and rigidity of the English<br />
approach. 33<br />
6.60 The result is that the way warranties are to be interpreted and applied is largely a<br />
matter for state law. As we have seen, some states, such as Texas, require a<br />
causal connection between the breach and the loss before permitting the insurer<br />
to avoid paying a claim.<br />
6.61 By contrast, in New York, the requirement is that a breach of warranty will avoid<br />
an insurance contract, provided that it “materially increases the risk of loss,<br />
damage or injury within the coverage of the contract”. 34 If the contract specifies<br />
two or more kinds of loss (such as fire and theft) the breach will only avoid the<br />
particular kind of loss to which the warranty relates. This does not mean that the<br />
breach must cause or contribute to the specific loss, but it must be such that<br />
would materially increase the risk of a loss of the same sort. In other words, a<br />
breach of a burglar alarm condition would not affect a fire claim, but it would<br />
avoid a theft policy, so as to permit the insurer to refuse a claim for theft, however<br />
the thieves had entered the building.<br />
CIVIL LAW JURISDICTIONS<br />
6.62 UK law on breach of warranty diverges from that of most other European States,<br />
which require that a breach be causally connected to the loss in some way before<br />
it can absolve the insurer from payment.<br />
6.63 Baris Soyer provides a detailed analysis of the English, German and Norwegian<br />
approach to breach of warranty in marine insurance. 35 He shows that in both<br />
Germany and Norway provisions exist to exempt the insurer from liability if the<br />
nature of the risk changes during the life of the policy. However, unlike the<br />
English law, these require some degree of culpability and causation.<br />
32 For a discussion, see B. Soyer, <strong>Warranties</strong> in Marine <strong>Insurance</strong> (2 nd ed, 2006), p 182.<br />
33 T Schoenbaum, “<strong>Warranties</strong> in the <strong>Law</strong> of Marine <strong>Insurance</strong>: Some Suggestions for<br />
Reform of English and American <strong>Law</strong>”, 23 Tul Mar LJ 267 (1998-1999), 314.<br />
34 New York <strong>Insurance</strong> Code, Article 31, section 3106(b).<br />
35 <strong>Warranties</strong> in Marine <strong>Insurance</strong> (2 nd ed, 2006).<br />
58