Supreme Court
Action No. 25 of 1999
28th January, 2000
Shanks, J,

Mr. Wilfred Elrington for the Plaintiff
Mr. Fred Lumor for the Defendant

Policies of insurance over dwelling house and its contents - Policies arising from one initial policy which was later separated into two policies; one to cover the dwelling house and one to cover its contents - Defendant raising defences of (i) misrepresentation or (ii) non-disclosure, non-notification, and (iii) discharge from liability under an executed release - Whether defences applicable on the facts.

J U D G M E N T

This is a claim under an insurance policy covering a dwelling at 126 Vista Del Mar, Ladyville, Belize City. The policy in question is No.11078 issued by the Defendants. The sum insured is $34,000.00. The premium was $15.30 payable weekly. The dwelling in question burnt down on the 30th of September, 1998. There is no issue raised as to the quantum payable if the claim is otherwise valid.

I have heard evidence from the Plaintiff himself, Mr. Sewell, from Mr. Moore who is the Managing Director of the Defendant Insurance Company and from Mr. Nunez who is their Claims Manager.

I allowed Mr. Lumor who is representing the Defendant to call Mr. Nunez after Mr. Lumor had closed his case because he had complained, in my view justifiably, that he had been taken by surprise in relation to one matter on which Mr. Nunez could assist, namely, whether the Plaintiff had signed a Claim Form at the Defendant's Office.

The history of the matter is as follows: The Plaintiff worked for a Company called Belize Distributors Ltd. At the time Philip Moore, who is the brother of Mr. Moore, the Managing Director of the Defendant, was the Manager of that office. In 1995 the Plaintiff whilst working at the office was sold by a Mr. Sebastian, who is the Defendant's agent, an Insurance Policy covering both his dwelling and the contents. That was policy 8986. The premium under that policy was $10.58 payable weekly. The sum insured was a total of $23,500.00. The Policy itself says that the buildings are worth $10,500.00 and that the contents are worth $13,000.00. However, as was admitted by Mr. Moore, that must be an error and indeed the Proposal Form shows those figures as being the other way around, that is, the $10,500.00 was for the contents and the $13,000.00 was for the dwelling. The Proposal Forms also breaks down the premium as between contents and dwelling and assigns $4.73 to contents and $5.85 to the dwelling. The Plaintiff paid his premiums under Policy 8986 weekly and obtained Mr. Sebastian's initials as a receipt against each weekly payment in a payment book which I was shown.

In 1997 the Plaintiff extended his dwelling house and having done so spoke to Mr. Sebastian about it and Mr. Sebastian suggested he increase his insurance and went with him and measured the whole building in its extended form. Mr. Sebastian recommended that he insure the whole building and said that he Mr. Sebastian would sort out the formalities. He came with a new policy and indeed a new Proposal Form and the Policy became No. 11078 which is the one in question in these proceedings. He told the Plaintiff that the new Policy 11078 would cover the dwelling house while the old one, 8986 would continue to cover only the contents. The Plaintiff continued to pay premiums and he now had two payments books. The old payment book recorded a payment of $4.73 each week relating to Policy 8986 and the new payment book records a weekly payment of $15.30 which relates to Policy 11078. The book in respect of 8986 had the word "contents" written on it by somebody at some point and the other one had "dwelling" written on it. Policy 11078 records that it is in respect of a Dwelling. The sum insured is $34,000.00 and the premium is recorded as $15.30.

The fire occurred on the 30th September, 1998 as I have said, and everything that Mr. Sewell owned was destroyed in the fire. He was at work at the time and went straight there. He told me that he saw Mr. Nunez already there, though Mr. Nunez told us in evidence that he did not go to the premises until the following day. I do not believe that this conflict needs to be resolved. That day or the day after the Plaintiff went to the Defendant's office and saw Mr. Nunez. He gave Mr. Nunez full details of his claim and Mr. Nunez noted them down in his own notes and there is no dispute about that. The Plaintiff says that he signed a Claim Form in respect to the Dwelling and contents which had already been filled in by Mr. Nunez when he got to the office. Mr. Nunez denied that there was any Claim Form signed by the Plaintiff and the Defendant has apparently been unable to find any trace of such a Claim Form. The Plaintiff told me that on the occasion when he signed the Claim Form Mr. Nunez told him that he would be paid on Monday. I had no evidence from Mr. Nunez about that. The Plaintiff then told me that he was later told by Mr. Nunez that he needed to file a fire report and a police report before the claim would be paid and he obtained those two reports. I don't believe there is any dispute about that.

Later, Mr. Nunez told the Plaintiff that Mr. Moore, that is the Managing Director, had a problem with his policies and he would have to wait for payment. The Plaintiff kept calling in and calling and he got no concrete response. He told me that Mr. Nunez and Mr. Moore kept passing him one to the other. However, just before Christmas he was told that a cheque was ready for him and he went to the office and saw Mr. Nunez and on that occasion he signed a form of release and was paid $10,500.00. His evidence was on that occasion Mr. Nunez said that the settlement he had been paid was in respect of his contents and that he would have to take up the question of the dwelling with Mr. Moore. He did take up that question with Mr. Moore and he (Moore) said that he would have to put the matter into the Court's hands and so here we are.

On those facts, the Defendant has raised a number of Defences and I will deal with them in order.

First of all, it is said that there was a non-disclosure or misrepresentation in the Proposal Form in respect of policy 11078 because that Proposal Form asked the question whether the property is now insured by any other policy and contains the answer "no" and it was signed by Mr. Sewell. On the Plaintiff's evidence, which is uncontradicted as to what he was told by Mr. Sebastian, this was indeed the case. The Plaintiff was told by Mr. Sebastian that the old policy now only related to contents and that the new policy was the only one dealing with the dwelling and therefore it seems to me there was actually no mis-representation at all. Even if there was, Mr. Sebastian knew exactly what was happening and he was the agent of the Defendant. Indeed, from his answers when he was giving evidence it seems to me that Mr. Moore would well have known what was going on here and the records that he later looked at made it clear to him what was going on, so I reject the defence of misrepresentation.

Then two, the defence of non-notification was raised based on Clause 11 of the conditions of the policy. That Clause is in the following terms:

"On the happening of any loss or damage the insured shall forthwith give notice thereof to the Company and shall within 15 days after the loss or damage or such further time as the Company may in writing allow in that behalf deliver to the Company:

It seems to me that Mr. Sewell did indeed comply with those terms. The notice of the happening of the event does not need to be given in writing. It is quite clear that either independently or through the Plaintiff, the Defendant came to know that his property had burnt down within either minutes or at most a day. So they had immediate notice of the event. So far as the Claim in writing for the loss and damage is concerned, there is no actual requirement that it is signed by anybody and Mr. Nunez gave evidence that he took down full details of the Claim in writing himself and this it seems to me is sufficient to satisfy the requirement of the Clause that details in writing are submitted. But even if it was up to the Plaintiff to physically hand over some written claim in order to satisfy the terms of the Policy, it is clear that any such condition has been waived by the Defendants by the subsequent payment of $10,500.00 and by continuing to deal with his queries and problems over the next two months and by asking for the fire report and the police report. There was thus a clear waiver if any was required.

The third defence raised is that the matter has been settled by the form of release which Mr. Sewell signed as I have said in December, 1998. The terms of that release are as follows:

Received from HOME PROTECTOR INSURANCE COMPANY LIMITED the sum of Ten Thousand Five Hundred Dollars ($10,500.00) in full satisfaction liquidation and discharge of all claims, costs and expenses in respect of loss injury and damages sustained, whether directly or indirectly, arising from the fire at 126 Vista Del Mar, Ladyville, Belize District owned by Mark Sewell Policy No.8986."

It is dated 23rd December, 1998 and signed by Mr. Sewell and there is no doubt that he received a cheque for $10,500.00.

It seem to me that in the light of what had gone before, in light of the fact that $10,500.00 was the sum insured for the contents, in the light of the specific mention of Policy 8986 and in the light of what Mr. Nunez said to him at the time he signed this Form which was that the release related to the contents, I should read this document as indeed relating only to the contents and not as a general release in relation to all claims arising out of the fire. I therefore reject the defence that Mr. Sewell has waived his rights in relation to the dwelling house against the Defendant Insurer.

In the circumstances, I have no hesitation in giving judgment for the Plaintiff in the sum claimed which is $34,000.00 and I give judgment in that sum. I award interest on that sum at the rate of 6 percent from the 30th of September, 1998 until the total payment is made and costs are assessed at $1,250.00.