Finbar Tolan v McLaughlin and Greaney Insurances Ltd T/A Future and Zurich Insurance Plc

• Jurisdiction: Ireland
• Judge: Mr. Justice Binchy
• Judgment Date: 03 February 2022
• Neutral Citation: [2022] IECA 27
• Docket Number: Record No. 2020/126
• Year: 2022
• Court: Court of Appeal (Ireland)

Between/

Finbar Tolan

Plaintiff/Appellant

and

McLaughlin and Greaney Insurances Limited T/A Future and Zurich Insurance Plc

Defendants/Respondents

[2022] IECA 27

Faherty J.

Collins J.

Binchy J.

Record No. 2020/126

THE COURT OF APPEAL

Insurance – Specific performance – Damages – Appellant seeking damages for breach of contract, breach of duty and misrepresentation – Whether the conclusions of the trial judge on matters of fact were based upon credible evidence

Facts: The appellant, Mr Tolan, in his plenary summons, claimed: (1) a declaration that he was entitled to payment, from the second respondent, Zurich Insurance plc (Zurich), in respect of the costs of repair or replacement of buildings damaged by a storm, pursuant to the terms of an insurance protection policy; (2) an order for specific performance of the policy, or damages in lieu, as against Zurich; (3) damages for loss of health and inconvenience as against Zurich and the first respondent, McLaughlin and Greaney Insurances Ltd (Future); and (4) damages for breach of contract, breach of duty and misrepresentation, including aggravated or exemplary damages as against both defendants. The High Court refused the appellant’s claim. The appellant appealed to the Court of Appeal on the following grounds: (1) he had a contract of insurance with Zurich, pursuant to which he was entitled to be paid the cost of repairing the damage caused to the cattle sheds by the storm; (2) the trial judge erred in holding that the appellant had no claim for damages arising out of his inability to renew his insurance or obtain alterative insurance cover all of which was a consequence of the actions of the respondents; (3) the trial judge erred in admitting into evidence undated and unsigned documents; (4) the trial judge erred in placing too much emphasis on the innocence of the respondents in circumstances where the appellant was a more innocent party; (5) the trial judge erred in preferring the evidence of the witnesses of the respondents over the evidence of the appellant and the respondents coached their witnesses in an attempt to discredit the appellant; (6) the trial judge erred in failing to take into account the consequences for the appellant of the refusal of Zurich to renew his farm insurance policy, i.e. that it would result in the appellant not being able to secure to obtain alternative insurance, and the trial judge erred in not realising that all insurance companies in Ireland, including Zurich, are acting as a cartel.

Held by Binchy J that the conclusions of the trial judge on matters of fact were based upon credible evidence and should not be disturbed by the Court. Binchy J found that there was ample evidence from which the trial judge was entitled to conclude as he did that the information concerning the age of the cattle shed was provided by the appellant and that, in those circumstances, Future could not be held in any way responsible for the misrepresentation, which was entirely the responsibility of the appellant. Binchy J held that Zurich was, as a matter of law, entitled to repudiate the policy upon its discovery; instead, quite reasonably, it elected to withdraw cover in respect of the cattle sheds only. Binchy J held that this meant that it was entitled to reject the claim. Binchy J noted that, far from accepting this as a reasonable offer in the circumstances, the appellant chose to issue proceedings against Future and Zurich in January 2018. Against a background of misrepresentation and faced with legal proceedings issued against it by the appellant arising out of his own misrepresentation, Binchy J found that it was hardly surprising that Zurich would decline to renew the policy in April 2018. Binchy J held that, as a matter of law, Zurich was entitled to take that course.

Binchy J dismissed the appeal. Binchy J’s provisional view was that the costs of the appeal should follow the event, and that the appellant should pay the costs of both respondents, to be adjudicated in default of agreement.

Appeal dismissed.

UNAPPROVED

JUDGMENT of Mr. Justice Binchy delivered on the 3 ^rd day of February 2022

1 . The plaintiff/appellant is a farmer and cattle dealer with land holdings in County Mayo. The first named defendant/respondent (hereinafter “Future”) is an insurance brokerage with whom the appellant has had dealings over a long number of years. The second named defendant/respondent (hereinafter “Zurich”) provided the appellant with an insurance protection policy in respect of his farming activities and certain farm buildings from April 2015 until April 2018 (the “Policy”).

2 . The appellant claims that, on 23 ^rd February 2017, as a result of storm Doris, damage was caused to two cattle sheds on his farm. He says that initially he thought that he would repair the damage to the sheds without recourse to the Policy (as he thought that the repairs would not be costly), but having received a quotation to repair the damage, he elected to make a claim under the Policy (the “Claim”) because the cost of repairs was far greater than he had expected.

3 . The appellant then contacted Zurich directly for the purpose of making the Claim and in early May 2017 a meeting was arranged on site between the appellant's loss adjuster and a loss adjuster appointed on behalf of Zurich. As a result of this inspection, Zurich learned, for the first time, that the buildings in respect of which the Claim was made, i.e. the cattle sheds, were older and of a different construction type than it had understood at the time that it issued the Policy. As a result, and also because in Zurich's view, the Claim was made outside the time limit prescribed by the Policy, Zurich declined to indemnify the appellant in respect of the Claim. However, it did not repudiate the Policy. Instead it decided to deal with the matter on the same basis that it would have done had the correct information been provided at the time of inception of the Policy. It therefore withdrew storm cover retrospectively (from the time of inception of the Policy in 2015), and refunded to the appellant such portion of the premia received from the appellant as was attributable to the storm cover on the cattle sheds, and otherwise continued to provide cover to the appellant in accordance with the Policy.

4 . The appellant, however, remained dissatisfied, and following a period of engagement between the appellant and Zurich, the appellant issued these proceedings on 25 ^th January 2018, following upon which Zurich declined to renew the Policy upon its expiration in April of that year.

The Pleaded Case

5 . While the appellant was represented by solicitors and counsel in the court below, he drafted the plenary summons and statement of claim in the proceedings himself, and he also conducted his appeal before this Court himself. In his plenary summons he claims (and here I paraphrase):

• 1. A declaration that he is entitled to payment, from Zurich, in respect of the costs of repair or replacement of the buildings damaged by the storm, pursuant to the terms of the Policy;

• 2. An order for specific performance of the Policy, or damages in lieu, as against Zurich;

• 3. Damages for loss of health and inconvenience as against both defendants;

• 4. Damages for breach of contract, breach of duty and misrepresentation, including aggravated or exemplary damages as against both defendants.

Statement of Claim

6 . In his statement of claim delivered on 24 ^th July 2019, the appellant states that in or about April 2016 he attended at the premises of Future to renew his farm insurance policy for the following year. As he had always done, he dealt with a Ms. Noreen Gilligan. He says that no changes to his existing policy were required. He claims that he attended the offices of Future every year for the purpose of renewing his farm insurance policy, and that he relied on Ms. Gilligan to obtain the best quote available, and he also relied on her to represent him in the event of a claim under the policy, and to ensure that the policy was honoured by the insurers.

7 . He claims that he was not questioned by Ms. Gilligan either when incepting a policy or renewing his policy each year, until he sought cover for a slatted beef fattening unit valued at over €200,000, which he had constructed in 2007. He claims that because of the high value of this unit she enquired of him as to its year of construction. However, he claims, she never questioned him about the “value or year of anything else”.

8 . He claims that two cattle sheds were damaged in a storm on 23 ^rd February 2017, as a result of which it was necessary for him to make a claim under the Policy. He engaged loss adjusters, Auray Assessors, who attended on site with loss adjusters appointed on behalf of Zurich. He claims that as a result of an error at the time he applied for the Policy, the cattle sheds were stated to have been constructed at the same time as the slatted unit (2007) and this was not correct. As a result, he claims the respondents are refusing to honour the Claim. He lays the blame for this error with Future, as he maintains it was an error of Ms. Gilligan's making, she being the only person he ever dealt with in Future. He says that the cattle sheds were built long before the slatted unit and at no time did he ever submit to the respondents that they had been constructed in 2007. He says that one of the cattle sheds was valued at €25,000 and the other at €35,000. He submitted a fully vouched claim for repairs to the cattle sheds in the sum of €77,000 which he says the respondents have “refused to honour”.

9 . He claims that the respondents are refusing to renew the Policy, and as a result he is unable to obtain quotations from any other insurers. He claims that the respondents are accusing him of misrepresentation in relation to the cattle sheds, and this has caused him upset to the...