Dennis Browne Claimant v Nagico Insurance Company Ltd Defendant [ECSC]
| Jurisdiction | Saint Kitts and Nevis |
| Judge | Thomas, J |
| Judgment Date | 27 November 2013 |
| Judgment citation (vLex) | [2013] ECSC J1127-2 |
| Date | 27 November 2013 |
| Court | High Court (Saint Kitts and Nevis) |
| Docket Number | SKBHCV2012/0053 |
EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
SKBHCV2012/0053
Thomas, J [A.G]: In this action the claimant, Dennis Browne, claims against the defendant, NAGICO Insurance Company Limited the sum of $170,000.00 with respect to a comprehensively insured motor vehicle owned by the claimant.
In the statement of claim the claimant contends that the defendant, as an insurance company registered in the State of St. Kitts and Nevis, and was the insurer of the claimant.
The matter of the insurance premium is also pleaded which the claimant avers was $2,501.04 for the period January 12th, 2010 to April 12th, 2010. Under the said policy it was agreed that the claimant would be indemnified against, inter alia, loss or damage to the motor vehicle as well as its accessories and spare parts caused by accidental loss or overturning or collision or overturning consequent upon breakdown or consequent upon wear and tear.
The claimant avers that on 27th March 2010 during the subsistence of the policy the insured vehicle was destroyed when it overturned due to brake failure at which time it was driven by an authorized driver.
It is the pleading by the claimant that the defendant was informed of the accident and the resulting loss and damage, and in or about March 2010, was informed that the claim could not be honoured on the basis of the claimant's neglect.
In its defence the defendant while admitting the existence of the policy disputes the claim on the basis that the proposal for motor insurance by the claimant was not true in every respect and contained false statements and or misrepresentations.
The particulars of false statements include the following:
a. "The claimant stated that the make of the vehicle was a Ford Dump truck. The same was not true. The make of the vehicle is a Ford Tractor Truck which was modified to operate as a dump truck."
It is the further contention of the defendant that the claimant did not disclose all material facts and did not give notice of any of the modification to the said vehicle. In the premises the defendant denies that it is liable under the contract.
The claimant in his reply denies that the proposal contained false statements or misrepresentations. The claimant also says that the defendant's Loss Adjusters, Surveyors and Insurance Consultants inspected the insured vehicle and stated, among other things that in terms and conditions there are no modifications.
In his witness statement the claimant, Dennis Browne, outlines the circumstance under which he purchased a 1997 Ford Mode Dump Truck in about October 2008 which was financed by the foundation for National Development with a loan of $139,200.00 and insured with the defendant.
The coverage initially was from the period 10th October 2008 to 1st January 2009 and continued every month after January 2009 with the payment of monthly premiums. The witness says further that in November 2009 he did not have the funds to continue the premium payments and payments ceased until 12th January 2010 when they were resumed at which time he was not asked to complete a new proposal form and the policy was renewed for the period 12th January 2010 to April 2010.
The circumstances surrounding the accident involving the insured vehicle are outlined by the witness and the submission of the claim for compensation which was not satisfied by the defendant. According to the claimant, the refusal is not based on a determination by the defendant that the accident occurred due to brake failure.
Finally, the claimant reveals his knowledge of the vehicle as a dump truck and also denies that he misled or misrepresented information to the defendant.
I cross-examination the claimant gave further evidence of the valuation done on the subject vehicle and the steps he took before purchasing the said vehicle.
The witness was also cross examined on the valuation carried before the purchase and for the purposes of the valuation. In the end the claimant conceded that the valuation of $140,000.00 which is the valuation given to the defendant was wrong but he was not aware of this.
In further cross-examination the claimant revealed that when he made the claim to the defendant the response was that it was refused because of lack of maintenance.
In his witness statement Alston Williams says he is a heavy equipment owner and operator and the owner of A. W. Heavy Equipment. And with respect to Dennis Browne, he says that he know him from a very long time.
Concerning the vehicle which he says he sold to Dennis Browne, it is Williams' evidence that it is a 1997 Ford CBO Model Dump Truck which he ordered on line; and he gave a host of technical details in this regard.
In cross-examination Williams testified that the vehicle he sold to the claimant was not a tractor. It is also his evidence that he sold the vehicle to the claimant for $140,000.00
In a direct discrepancy between his evidence in chief and his cross-examination, the witness said first that when the vehicle ordered it only had a 9 yard dump and he did certain modifications to get the 12 yard dump he needed. However, in cross-examination the witness said that when the vehicle arrowed it had a 12 yard dump. And in cross-examination on the point the witness insisted that both statements are correct.
In re-examination on the same point the witness evidence is that the vehicle was a 9 yard because it came with the preparation for 12 yards.
Kazembe Harris in his witness statement gave his occupation as a heavy equipment operator/driver with a class C licence, being a truck driver licence. It is Harris' evidence that he was the driver of the 1997 Ford CBO model dump truck on 27th March 2010 at the time of the accident, at which time he was employed by the claimant.
With respect to the accident the witness gave full details and he also said on descending a hill he selected his low gear and when he applied the brake it went straight into the floor of the truck with the truck crashing over the hill and was completely destroyed.
The witness, Kazembe Harris, gave further evidence of the brake failure in a conversation with an officer of the defendant. According to him, he told the officer that: "there was no explanation from why the brakes did not work other than they suddenly failed and that the only thing I could do when I realized the brakes had failed was to abandon the truck".
In cross — examination Harris gave the court some indication as to what he did under the hood of the vehicle as being to check the water in the radiator.
According to Eudid Osborne, he has been a motor mechanic for approximately 32 years and owns and operates an Automotive Evaluation Limited.
It is Osborne's evidence that he examined the wrecked vehicle, as requested to form opinions as to why the brakes failed. According to him: "I was able to conclude from my examination as well as from the explanation of the accident that the air brakes had failed at some stage, most likely during that trip, which failed to ultimately stop the truck. Having been familiar with heavy duty trucks I am aware that brake failure in this type of vehicle is not an unusual occurrence."
Eudid Osborne was cross-examined initially on the plate on a vehicle. In this regard the witness testified that such a plate cannot be removed and explained that the words "dump truck" would not be found on the plate. However, in relation to the claimant's vehicle the witness said he could not recall what description appeared on the plate.
In her witness statement Mashanda Nisbett says that she is an underwriter supervisor employed by the defendant and that her duties included the approval of all policy documents and supervisor of the underwriting and customer service departments.
In her witness statement the witness gives the history of the insurance of the subject vehicle with the defendant including the renewals on January 15th, 2009 for nine months and on January 12th, 2010 for 3 months at which time the insured value was increased from, $140,000.00 to $170,000.00 under a comprehensive policy.
At paragraph 17 of her witness statement Ms. Nisbett states the policy of the company on receipt of a proposal for motor vehicle in order to determine whether to insure the risk and if so at what premium. And at paragraph 18 the witness says as follows:
18 "If Dennis Browne had informed NAGICO that the make of PA1219 was a Ford Truck Tractor and it was converted to a Dump Truck, NAGICO would have requested that the vehicle be presented for inspection by NAGICO prior to acceptance of the risk.
19 Additionally, if Dennis Browne had stated on the proposal or on the change form that PA1219 had an engine capacity of about 1800cc as oppose[d] to 2400cc the premium charged by NAGICO would have been higher because a higher engine capacity creates a higher risk".
In cross-examination Ms. Nisbett testified that on the proposal form there is no question relating to modification, and she could not say if the question was asked.
It was then put to the witness that the fact that a question as to modification does not appear and there is no modification it is not a material or important aspect of the proposal for the motor insurance. The witness disagreed and added that the proposal does not contain all the questions but NAGICO would expect the customer to provide all the relevant information.
As regard the actual policy Ms. Nisbett said that a customer would get the document with the terms but added that she could not say that the policy should contain all the terms and conditions. There was no...
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