Fenardo Williams v Nagico Insurance Company Ltd

• Jurisdiction: Saint Kitts and Nevis
• Judge: Gill, J.
• Judgment Date: 18 March 2024
• Judgment citation (vLex): [2024] ECSC J0318-1
• Docket Number: SKBHCV2021/0111
• Court: High Court (Saint Kitts and Nevis)

Between:

Fenardo Williams

Claimant

and

Nagico Insurance Company Limited

Defendant

SKBHCV2021/0111

THE EASTERN CARRIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Appearances:

Mr. Damian Kelsick KC with him Ms. Hadya Dolphin for the Claimant

Mrs. Sherry-Ann Liburd-Charles for the Defendant

Gill, J.

1 An insured seeks damages for the refusal of an insurance company to indemnify him under the insurance contract for losses suffered as a result of a motor vehicular accident. The insurance company asserts that the insured is not entitled to recover any sums under the exceptions in the insurance policy.

2 On 13 ^th July 2021, the claimant Fenardo Williams (“Mr. Williams”) filed a claim against the defendant NAGICO Insurance Company Limited (“NAGICO”) for special damages in the sum of EC$121,330.00 for breach of a private motor vehicle insurance policy (“the policy”) made between the parties. Mr. Williams is seeking indemnification for the loss suffered to his and a third party's loss and damage sustained as a result of a motor vehicular accident which occurred on 4 ^th January 2021. He was the driver of his vehicle when there was a collision with the third party's vehicle. Both vehicles were damaged in the crash. Mr. Williams admitted liability for the accident. He claimed indemnification from NAGICO. NAGICO rejected his claim on the basis that at the time of the accident, he was speeding (which caused the accident) in breach of the provisions of the insurance policy and therefore, NAGICO is not obligated to indemnify him.

The claimant's evidence

3 On 7 ^th July 2020, Mr. Williams and NAGICO entered into a contract in respect of his 2011 Mazda CX7 motor vehicle bearing registration number PA4460. The parties agreed that NAGICO would indemnify Mr. Williams for any loss or damage that occurred while he was driving the said vehicle, and that NAGICO would pay the amount of the loss or damage to repair, reinstate or replace the vehicle or any third party's vehicle damaged from a collision involving PA4460. Under the agreement, PA4460 was valued at EC$45,000.00.

4 On 4 ^th January 2021, Mr. Williams was driving PA4460 southbound on Montebello Road, Buckley's Housing Development, Basseterre, St. Kitts when his telephone rang and he became distracted from the road. He collided with a vehicle registration number PB858 driven by Waynebourne Bridgewater and owned by Gelmond Bridgewater. There were no personal injuries.

5 Mr. Williams was driving at about 60 kilometers per hour (about 37 miles per hour). He did not believe he was speeding. He was going no more than 40 miles per hour. Under cross-examination, Mr. Williams was referred to his motor claim form dated 5 ^th January 2021 which he signed. The relevant portion of that form asks the question, “Vehicle speed before the accident?” The answer typed on the form is “60 MPH”. Mr. Williams explained that he told “her” that he was going around 60, and that he did not say “miles per hour”. In re-examination, he clarified that “her” referred to the NAGICO employee who typed in the information on the form, and that his gauge (speedometer) is in kilometers per hour. A photograph of the said speedometer is part of the filed bundle of documents.

6 On 5 ^th January 2021, Mr. Williams went to NAGICO's offices and informed them of the collision.

7 On NAGICO's direction, he obtained an estimate of the damage to PA4460. The vehicle was given an estimated pre-accident value of EC$45,000.00 and a post-accident value of EC$4,000.00.

8 On 8 ^th January 2021, to Mr. Williams' dismay, NAGICO informed him that they would not be indemnifying him under the policy as he had breached the policy by “failing to adhere to the legal speed limit”.

9 Remaining un-indemnified under the policy caused him great expense because he had to rent a replacement vehicle from 10 ^th January 2021 to 30 ^th April 2021 at a cost of US$5,400.00.

The defendant's evidence

10 Kenisher Dubuisson, the Deputy General Manager of NAGICO, at the material time, the Claims Supervisor, and Jason Hodge, NAGICO's Claims Adjuster gave evidence for the defence.

Evidence of Kenisher Dubuisson

11 Ms. Dubuisson received Mr. Williams' signed Motor Claim Form dated 5 ^th January 2021. She highlighted the information in the form that Mr. Williams was travelling at a speed of 60 miles per hour just before the collision. She was able to confirm that the speed limit for the area where the collision occurred was 20 miles per hour.

12 NAGICO did its internal investigations in relation to the accident. On completion of its investigations, NAGICO concluded that Mr. Williams was not entitled to be indemnified under the policy for the following reasons:

• a) Mr. Williams was in breach of a condition of the policy that all rules, laws and regulations and requirements of the local government must be complied with;

• b) NAGICO was exempted from liability under the policy for use by Mr. Williams otherwise than in accordance with the limitations as to use outlined in the Insurance Schedule. Mr. Williams was at all material times speeding and/or driving his vehicle over the speed limit and/or at an excessive speed in all the circumstances, and this was in breach of the limitations as to use under the policy; and

• c) The loss and damage to the vehicles was caused by the admitted excessive speeding and reckless driving of Mr. Williams and/or the third party Gelmond Bridgewater. In cross-examination, Ms. Dubuisson's evidence is that she determined that Mr. Williams' driving was reckless on the basis that he was speeding.

13 The denial of Mr. Williams' claim was communicated to him in writing by letter dated 8 ^th January 2021. Mr. Williams was advised that the loss was not covered under his policy given the speed he was travelling at the time of the collision.

14 The policy does not cover consequential loss. Under the exceptions to section 1 of the policy, consequential losses are expressly excluded.

15 NAGICO's denial of Mr. Williams' claim was done because Mr. Williams is not entitled to an indemnification as he breached the policy. NAGICO is not liable for any loss of use as claimed. Mr. Williams is not entitled to be paid any sums from NAGICO.

16 Even if Mr. Williams is entitled to be indemnified under the policy (which is denied), the loss of use claim is payable only for the days laid up for repairs to a maximum of EC$1,500.00, as expressly stated in the policy.

17 NAGICO is not responsible for any loss or damage sustained by the third party Gelmond Bridgewater. NAGICO has not consented to any promise of payment or compensation that may have been made by Mr. Williams to the third party. Even if Mr. Williams is entitled to be indemnified (which is denied), there has not been any determination by any court as to the party responsible for the collision. In these circumstances, there is no basis for the claims being made against NAGICO by Mr. Bridgewater through Mr. Williams.

18 If Mr. Williams is entitled to be indemnified (which is denied), indemnification will be subject to the post-accident value of the vehicle, the depreciation and total loss clauses in the policy and the policy deductible. If Mr. Williams is entitled to be indemnified (which is denied), NAGICO relies on the expert witness report provided by Alphonso Percival as a proper representation of the value of the loss sustained by Mr. Williams.

19 During cross-examination, Ms. Dubuisson was questioned as to her familiarity with certain provisions of the Vehicles and Road Traffic Act1 and the Basseterre Limits Act.2 Several questions and answers revolved around the speed limit for the area in which the collision occurred, including ascertaining whether or not the collision took place in the town of Basseterre or in a village as set out in the Basseterre Limits Act.

Evidence of Jason Hodge

20 Mr. Hodge is an Insurance Adjuster whose duties generally include investigating insurance claims to determine the extent of an insured's liability. He inspected the damage to Mr. Williams' vehicle. Mr. Hodge formed the preliminary view that the third party was responsible for the collision.

Issues

21 The main issue for the court to determine is whether NAGICO breached its obligation under the policy to indemnify Mr. Williams for the losses suffered as a result of the accident. In resolving this issue, and considering what came out in evidence at the trial, the court must determine:

• i. whether NAGICO was entitled to reject Mr. Williams' claim on the basis that he was speeding at the time of the collision as a breach of a condition of the policy and the exclusion clauses contained in the policy;

• ii. the meaning of “speeding” in the limitation clause in the Certificate of Insurance;

• iii. whether Mr. Williams was, in fact, speeding at the time of the collision;

• iv. if Mr. Williams is entitled to be indemnified by NAGICO, the quantum to be awarded to him; and

• v. whether NAGICO is liable to indemnify Mr. Williams for the loss and damage suffered by the third party.

Whether NAGICO was entitled to reject Mr. Williams' claim on the basis of speeding

22 The policy obligates NAGICO to indemnify Mr. Williams against loss or damage to his motor vehicle and its accessories and spare parts caused by accidental collision.3 Under the heading “GENERAL EXCEPTIONS” in the policy, it is stated that NAGICO shall not be liable in respect of any accident, loss, damage or liability caused, sustained or incurred whilst on the insured's order or with his permission or to his knowledge where any motor vehicle in respect of which indemnity is provided is being used otherwise than in accordance with the limitations as to use.4

23 In Mr. Williams' Certificate of Insurance, the limitations as to use are stated in clause 6.2 which reads as follows:

This policy does not cover use for hire & reward, racing, pacemaking, speeding,...