The law on insurance in the UK has not been updated for quite long and the call for reform is catching pace by every passing day. The issues to be raised in this research are the areas where reform is needed, the reason there is this need and what would be achieved by the reform. This research will however be confined to one major area where reform is required, namely, the insurable interest. This area might seem to be minimal but there are many issues within this area which needs to be clarified and reformed. This area affects the daily lives of a common person in the UK and it has been the courts and to some extent the insurers themselves who are giving them remedies. This area is in need of serious legislative change to transform the way people are involved with insurance companies. There will be some recommendations on how to bring about a change and how will that change affect the lives of people in the UK. In recommending the changes, some ideas will also be taken from foreign jurisdictions who have already transformed their respective laws. The drawbacks, if any, in the transformed system of the foreign jurisdictions will be identified and will be of great assistance in formulating a system which will be without those errors and therefore, getting a better idea from their experiment with the changes in law.
The requirement that an assured must have insurable interest in the subject matter of a policy is very fundamental one which goes to the heart of the insurance policy and is based on the principles of indemnity . If the assured possess the insurable interest in the subject matter than only can the insurer perform his duty by indemnifying the assured against losses . In case there is no insurable interest in the subject matter, the insurer will have a good defence to refuse payment against the losses . Another reason for the requirement of insurable interest is to differentiate it from the wagering or gaming contract which is void .
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The purposes of insurable interest can be identified as follows:
► Prevention of Gambling: Any insurance contract without insurable interest is a gambling contract and these cannot be legally enforced.
► Reducing intentional losses: It is a common belief that the requirement of insurable interest reduces intentional losses resulting from moral hazards.
► Enforcing the principle of indemnity: This principle states that a person should not profit from an insured loss. A contract of indemnity provides payment of a sum equivalent to the loss and therefore if a person has not suffered any loss the insurer has no duty to indemnify against that loss.
Before the enactment of the marine insurance Act 1745, English law acknowledged the European doctrine that the marine insurance contract required an insured to have an interest in the subject matter to have a contract of indemnity. During the 17th century insurers started issuing policies which did not require any insurable interest by including the words “interest or no interest”. Therefore it clearly suggested that parties were not interested in the interest but were rather wagering under the cover of insurance policies.
The first time the courts criticised these policies directly was in the case of Goddard v Garrett . However, the courts were not fully hostile towards these policies as these were beneficial to merchants and traders and they sometimes even turned a blind eye towards it. In the 18th century the courts not only approved these policies but also redefined the concept of wagering to accommodate the wagering character of these policies .
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With the enactment of the Marine Insurance Act 1745 the Parliament prohibited the ‘interest or no interest policies’. It made all these policies null and void . The purpose was not only to prevent gambling but the adverse effect wagering had on the overall trade in the country. The most common mischief was that of fraudulent claims and deliberate losses which put lives and property at risk which was in turn loss for the underwriters.
However, not all was good as wagering policies were allowed for foreign ships and cargo for the reason that bringing witnesses from abroad was difficult . There were a few other exceptions in Sections 2 and 3 of the Act but are out of the ambit of this discussion.
In Lucena v Craufurd Lord Eldon and Lawrence J established that the ownership of the property was not the only source of interest but there had to be sufficient certainty of benefit from the safety of the property (factual expectation of benefit from the continued existence of property ).
During the 19th Century the courts usually referred to Lord Eldon’s rules in cases where insurable interest was an issue. It was also further refined to include situations where the assured was liable to bear the cost of loss and damage to insured property. The court decided many cases where they clarified the issues and accommodated instances where they found insurable interest . The courts regarded in these cases that the insurable interest in the freight on the ships would be separate from the interest in the ships .
Marine Insurance Act 1906:
The laws of insurance are mostly dealt with by the Marines Insurance Act 1906, which is now more than a century old legislative work. Section 4(2) of the Act states that a contract will be a wagering contract if;
The assured does not have an insurable interest as defined by the Act and with no expectation of acquiring such an interest.
The policy is made ‘interest or no interest’, ‘without further proof of interest than the policy itself’ or any other term like that.
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The 1906 Act is supplemented by the Marine Insurance (Gambling Policies) Act 1909. This Act allowed PPI policies where the assured possessed bona fide interest; however the Act prohibited speculative contracts without interest on which the insurers had still paid claims.
The 1906 Act defines insurable interest in Section 5:
1) “Subject to the provisions of this Act, every person has an insurable interest who is interested in a marine adventure.”
2) “In particular a person is interested in a marine adventure where he stands in any legal or equitable relation to the adventure or to any insurable property at risk therein, in consequence of which he may benefit by the safety or due arrival of insurable property, or may be prejudiced by its loss, or by damage thereto, or by the detention thereof, or may incur liability in respect thereof.”
Section 5 is supplemented by Section 6 which requires proof of interest established by Rhind v Wilkinson that without a valid insurable interest at the time of loss the assured cannot enforce the contract of insurance.
The courts have still been dealing with the cases where insurable interest is an issue despite the enactment of the Act. The issue of a legal relationship requirement has been affirmed by the House of Lords in several decision in which the most notable is Macaura .
Moreover, the courts have also dealt with some issues in the laws of insurance but mostly they have been reluctant because it is for the Parliament to make laws rather than for the courts to interfere in the legislative process.
It seems strange that there have been no change in the century old laws by the Parliament. Laws of insurance are very common in developed countries and play a vital role in their economic development. There have been several recommendations by the Law commissions set up during previous years but they have failed to go to the Parliament due to different reasons. Mostly the insurers, being big corporations, have influenced the call for change and have brought about a change at their own initiative rather than legislative change.
The research will be based on the question that why there is a need for reform in the law of insurance with regards to insurable interest. Further subsidiary issues which have been the basis of contention include the innocent non disclosure, the question what a material fact is and whether the insured would know what it would be. Issues such as close family members not being able to insure another, e.g. parent – child and issues such as identified in Macaura v Northern Assurance Co Ltd . These issues would suggest to a reasonable person that there have been miscarriage of justice as well.
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The call for change has not only come from the common people, but most importantly, the ideas have come from leading academics, news papers, insurance lawyers and the courts. At different times, they have given valuable suggestions on how to come to an amicable solution.
Currently, the law commission is also engaged in preparing a paper which also calls for change in the laws of insurance. The law commission, however, has previously also been involved in this kind of work which could unfortunately, not, materialise.
Furthermore, there has been very minimal support for the change by politicians and government officials which has been very discouraging. There is also a need for awareness among the people who matter the most in bringing a change.
In discussing the reform of insurable interest, it is important to discuss the background of the principle. In Macaura v Northern Assurance Co Ltd the House of Lords established a rule whereby a shareholder cannot have an insurable interest in the property where he holds the shares, even if he is the sole share holder. This case has clearly defined that the principle is a very narrow one and the insured needs to have a legally-recognised proprietary or contractual right in the property he insures and a mere factual expectation of loss is not enough .
This narrowness has on many occasions provided a technical defence for an insurer, thereby leaving an insured, who was paying his premiums regularly, with no effective remedy. Many foreign jurisdictions have for this reason abandoned these narrow English Law rules and come up with modern and well argued reform. However, In Macaura the court held that this narrow view was adopted to avoid uncertainty which could result from a broad interpretation of the law. This seems to be an orthodox view which definitely needs to be changed. The reason being that the courts function to provide relief to the common man from a more powerful individual, company or the government so that they do not abuse that power. It can be seen from different case that the American courts have decided on each and every case individually rather than putting all possible situations under one principle. Moreover, there can only be certain cases where there would be a problem. The courts can decide on the most recurring situations under a precedent while new situations can be taken to the higher courts.
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Moreover, it is for the insurers to clearly set out guidelines and explain the situations where there would be no insurable interest, rather than enjoy the premiums and when the time comes to pay out claims, they take the cover of law. As all insurance agents and companies are specialists they can be in a much better position to know if the proposed insurance can be effectively carried out. Therefore, it can be very helpful for all those involved from the industry to make a code of conduct which will regulate the industry.
Areas of Controversy:
There are certain areas where the issue of insurable interest has been a controversial issue. Generally, the rules of insurable interest are subject to the requirements in Feasey v Sun Life of Canada . However, the courts have been reluctant to be active in finding a different solution than a previous precedent and have been sticking to the principle developed in Macaura . Usually the courts will only consider the presence of insurable interest if two conditions are satisfied and which are that;
the insured suffers financial loss, e.g. life and/or property lost, damaged and
there must be a legal relationship present with the life or property insured.
The two major areas to which the principle of insurable interest can be applied to are life assurance policies governed by the Life Assurance Act (1774) and non life insurance policies, of which Marine Insurance policies are governed by the Marine Insurance Act (1906) while the courts have applied similar principles to other policies like property and liability insurance policies. There are many areas of controversy in life assurance policies.
There are situations where there is no problem in identifying the insurable interest. However, there are some other issues where this is an issue. Some situations where there can be insurable interest without a problem are insuring one’s own life and husband or wife’s life. However, in the case of partners there has been a recent development as a result of Civil Partnership Act (2004) that the partners can have an insurable interest in each others’ lives for an unlimited amount. Before this the Federal Services Ombudsman had suggested that partners be treated as husband and wife. This is however, not that simple as the issue of continuity of the insurable interest is important. Therefore, the insurable interest must exist at the start of the policy. Clarke has argued that it is often impracticable and unsuitable to go on and measure the loss of life in monetary terms and this is the reason for the insurable interest to be present at the time of taking out of the policy.
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Furthermore, if the husband or wife or partners get separated than the policy will continue to pay out as long as premium payment is kept up. This however, can cause a major problem in that the separated partner can be induced by the benefit he/she can get and may possibly cause injury or death.
Moreover, creditors have an insurable interest in the life of debtors. However, the creditor can have no more interest than the loss that he could suffer if the debtor dies. This suggests that he can only claim for the outstanding amount and will not be able to claim anything more. If the debt is decreasing than the interest will only remain equivalent to that same diminished amount. Moreover, it will be difficult to establish if a debtor has guaranteed his credit with some sort of property or lien on the amount in the bank.
In an employee-employer relationship the amount of insurable interest is limited to the notice wages period . This will range according to the terms of employment and will be subject to any statutory requirements. Moreover, there are some policies known as key person policies which are treated as being valid in England by the ruling of the court in Fuji Finance v Aetna Insurance . However, it is still debatable whether the amount for which the key person is insured will be the same as the loss to be suffered by the company. The monetary loss incurred by the company from the death of the key person is immeasurable in monetary terms.
The major problems arise where there is no insurable interest present at all. These are situations like parent-child and child-parent, siblings and other non-blood relations. In situations of Parent-child it was held in Halford v Kymer that without a pecuniary interest a father has no insurable interest in the life of a son. This leaves it open for discussion that a dependant parent who is supported by a child can possibly have insurable interest. However, in situations like child-parent it has been held in Harse v Pearl that there is no insurable interest in the life of a parent by the child. It is assumed that this is not the case where the parent has a legal obligation to financially support the child e.g. situations where the court has made a maintenance order.
In non-life insurance policies there are many areas where insurable interest is an issue. As discussed above the Macaura case presented the biggest doubt in the minds of many as it seemed very strange at the outset that a sole shareholder could not insure his own property due to a technicality. However, there still is a possibility of insurable interest being present, where a shareholder can insure the loss of value of his shares which would result due to a misadventure the company embarked upon .
As discussed above in Lucena , an expectation does not give rise to insurable interest. Moreover, it needs to be stressed here that with marine insurances there must be insurable interest at the time of loss as opposed to other policies where the interest needs to be at the time of taking out the policy.
A person can have insurable interest in a property in a number of situations. These include where the insured has a legal or equitable title to the property (e.g. ownership or rented), where the insured has possession of the property or where the insured is responsible for, or will suffer loss in the event of damage to a property of which he is not in possession . Moreover, if two or more people share the use of the same property, they do have insurable interest by the reasoning in Goulstone v Royal Insurance . As per Lord Pearce in Tomlinson Hauliers Limited v Hepburn , “A person could insure to its full value property which he did not own and in which he did not have the exclusive insurable interest, holding the proceeds of the policy for himself in so far as they covered his own interest and the balance as trustee for the owner”.
Professor Birds and MacGillivray and Parkington have argued that the Life Assurance Act (1774) can be applied to property and fire insurance but Clarke , Colinvaux and others have argued against any extension of the Act to include fire insurance. Birds argues that a problem can occur when there is a tenant-landlord relationship as a tenant can claim for loss of his interest but cannot claim for the total loss and hold the proceeds on trust for the landlord (or vice versa).
Moreover, Clarke has argued in his article on the scope of the Act that if a new owner took out insurance policy just a day before he had the title to it and lost his property due to an insured peril he could lose his claim as he did not have insurable interest at the time of taking out the policy and this could happen after payment of years of premiums to the insurers.
Robinsons , on the other hand has identified the Fire Prevention (Metropolis) Act 1774 which gives protection to parties who have an interest in a fire damaged property even though there may not be particular mention of the others interest. Robinsons has also identified the ways in which tenants and others can have an insurable interest in property insurance.
There is also a possibility to take out an insurance policy for the benefit of a third party. This is common in situations where a warehouse owner or a hauliers company takes out insurance for the benefit of the owner of the property . The legal justification for this is commercial convenience and has been used in other situations. This does cause a bit of controversy as it can be argued that if a policy can be taken out for the benefit of a third person than the law should also find the insurable interest in situations of blood and non blood relationships in particular and the presence of the insurable interest in cases similar to those of the Macaura case, in general.
Move for Reform:
Laws of insurance are very common in developed countries and play a vital role in their economic development. As earlier discussed, the English insurance laws are outdated and there has not been very much change. Goodliffe has stated in one of his articles the Glengate case has only added to the misunderstanding of the insurable interest principle. Therefore, it can be said that rather than taking a clear stance on the issue of insurable interest the different cases have ruined the principle at the expense of the common man. There have been several recommendations by the law commissions set up during previous years but they have failed to go to the Parliament due to different reasons. Mostly the insurers, being big corporations, have influenced the call for change and have brought about a change at their own initiative rather than legislative change.
The call for change has not only come from the common people, but most importantly, the ideas have come from leading academics, news papers, insurance lawyers and the courts. At different times, they have given valuable suggestions on how to come to an amicable solution. Mostly the academics have given opinions in different articles since the early days of the principle for changes to be made. Academics and industry professionals have identified the areas where there is further need for reform as they have given rise to absurd results.
Currently, the Law Commission is also engaged in preparing a paper which also calls for change in the laws of insurance. The law commission, however, has previously also been involved in this kind of work which could unfortunately, not materialise.
It seems that this time around there would be some sort of a change brought about as those in favour of retaining the principle have also agreed with those against it that the principle is unreasonably restrictive . This suggests that if not a total over haul of laws, than at least some changes will be brought about.
Recently, the Law Commission has published a consultation paper on Insurance Contract Law but there is no mention of insurable interest in it, however it has been stated that the insurable interest principle will be dealt with in 2008 along with other post contractual reforms.
The basic concept of insurable interest is differently viewed in foreign jurisdictions. Many countries based their insurable interest concept on that of the English insurance law. However, some jurisdictions have made variations in interpreting the insurable interest principle while others have rejected the principles all together. In some jurisdictions this has been done by the courts while in others this step has been taken by legislation.
In Australia the Insurance Contracts Act 1984 was passed where in the Parliament rejected the insurable interest requirement. Section 16 (1) states that a contract of general insurance will not be void for lack of insurable interest at the start of the contract.
The Act further states in Section 17 that the insurer will not be absolved of liability even if the insured did not have any insurable interest at the time of loss, as long as insured did suffer a loss. Besides the general insurance contracts, the Act also gives similar position to contracts of life assurance and other life policies. Moreover, Section 20 states that the insurer will not be absolved of liability because a beneficiary had not been named in the insurance contract. This suggests that a person could have insurable interest even though they are not specifically named in the policy and could benefit from the policy e.g. a parent-child relationship.
In Canada, the Supreme Court of Canada reviewed the Macaura principle in the case of Constitution Insurance Co. of Canada v Kosmopoulos . The court did in fact over rule the Macaura principle established by the House of Lords in 1925. The court stated that the insured may be able to recover under a policy if the factual expectancy test was satisfied. However, as Birds has stated there was a difference of opinion among the bench and McIntyre J, who followed the narrow approach of Macaura and reached his decision by stating that as the Canadian company law permitted the creation of one shareholder companies and that such a person would have an insurable interest in the company’s property. Meanwhile, the other members of the bench adopted a broader view of the principle.
Wilson J in the same case pointed out that the reasoning that an insured in the narrow interest category would have better access and opportunity to destroy the property for insurance gains, while a shareholder would be bound by the sufficient provisions the law has provided to ensure that no undue benefit is received. She concluded by saying that the previous precedents that were based on the Macaura test should not be followed in Canada.
The laws of United States are not uniform all over and vary to a great degree from state to state and it is well possible that each state will have a different interpretation and view point on a certain subject matter. In the US, all states except California require a pecuniary interest but also recognise an insurable interest without regard to the existence of a pecuniary interest in cases of persons “closely related by blood or by law” where there is in consequence a “substantial interest engendered by love and affection” . Moreover, as Armstrong states not all the states have similar approaches and the courts have not always been flexible.
In 1908 the Kentucky High Court ruled that the English law Constraints did not apply to the American jurisdiction, by citing a number of other states’ cases. Armstrong , suggests that a major problem with the US principle is that it is not uniform for all the states as some states accept that a grandparent can insure the life of a grand child while other states refuse to accept this. The Texas Civil court has ruled in Hernandez v Supreme Forest that a child could be the beneficiary of an insurance contract even though it was the step-child. It can be said that the US law on insurable interest is more flexible and situations which would not be covered by the English law may well be catered for in the US courts. However, the flexibility of the courts is connected to the view each state takes towards the principle.
It is very important to look at the scenario in which insurable interest lies, as a whole and than make an opinion. It is equally important that the laws on insurance are truly outdated and they need to be updated with the altogether changed society and look at the same from a modern perspective. The Marine Insurance Act 1906 was enacted to stop abuse of the insurance laws that were prevalent at that time.
With all changing times new ways of thinking and new ways of doing things are developed. This includes the good and the bad. The good can be stated to be improvements in science and technology in helping the overall administration of this world. The bad can be very similar as new techniques are found to gain undue advantages.
A common example is that the insurers give out standard term policies and there are elements in society who find loopholes and exploit the insurance contract by posing as bonafide policy holders. Similarly it is also easy for the insurers to investigate claims using the latest technologies and methods and find out exactly which policy holder is bonafide. With the investigation techniques available these days, it is very easy to find out if the loss is actual or is a false claim. The insurance industry also needs to accept that they cannot just reap the benefits of premiums and contest a claim when it is made on pure technical grounds rather than what was actually being stopped i.e. wagering.
As the insurance industry is a very mature massive, it is important that there be coordination among all the companies in order to improve their working and provide real benefit to the society by identifying the bonafide policy holder and separating them from the illegal claimant.
Birds has suggested that whenever there is an opportunity the House of Lords would try to follow the “Canadian lead and rid the law of an artificial and unnecessary restraint”.
There has been very minimal support for the change by politicians and government officials which has been very discouraging. There is also a need for awareness among the people who matter the most in bringing a change.
Some work also needs to be done by the media, both electronic and print, to pass the message to both insurers and the common citizens of the UK to come to an agreeable solution.
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