Keenan v Shield Insurance Company Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Blayney
• Judgment Date: 13 February 1987
• Neutral Citation: 1987 WJSC-HC 873
• Docket Number: [1984 No. 780 Sp.],No. 780 Sp. Ct. 6/1984
• Court: High Court
• Date: 13 February 1987

KEENAN v. SHIELD INSURANCE CO LTD

PATRIICK KEENAN

PLAINTIFF

-V-

SHIELD INSURANCE COMPANY LIMITED

DEFENDANT

1987 WJSC-HC 873

No. 780 Sp. Ct. 6/1984

THE HIGH COURT

Synopsis:

CONTRACT

Construction

Insurance - Policy - Insured's warranties - Conditions precedent to liability of insurer - ~See~ Insurance, contract - (1984/780 Sp. - Blayney J. - 13/2/87) [1987] IR 113

|Keenan v. Shield Insurance Co. Ltd.|

INSURANCE

Contract

Construction - Fire insurance - Warranty - Declaration of plaintiff made on proposal form - Declaration that the particulars and answers given by the plaintiff on the form were true and complete in every respect, and that no material fact had been suppressed or withheld - Acceptance by plaintiff that the declarations and answers on the form should be the basis of the contract proposed between the plaintiff and the defendant insurer - Defendant issued to plaintiff a policy of insurance whereby the defendant agreed to indemnify the plaintiff against loss sustained by him as the result of damage to the plaintiff's house caused by fire - Plaintiff's house was destroyed by fire during the period of cover stated in the policy - Plaintiff claimed from the defendant payment of the amount of the plaintiff's loss resulting from the fire, but the defendant disclaimed any liability under the policy - In the proposal form the plaintiff had answered negatively a question which asked whether he had ever "sustained loss or damage by any of the risks or liabilities" against which he wished to be insured - Within the previous year the plaintiff had been paid the sum of #53 in discharge of a claim by him for indemnity against a loss by fire damage - At the hearing of a reference to arbitration, the arbitrator found (a) that the satisfaction of each of the warranties given by the plaintiff in the declaration made by him on the proposal form was a condition precedent to the defendant's liability under the policy; (b) that the plaintiff's answer to the question was not true or complete; and (c) that, nevertheless, the plaintiff's answer to that question did not amount to a misrepresentation or concealment by the plaintiff of a material fact - The arbitrator adjudged that the plaintiff was not entitled to payment of any sum by the defendant under the policy - The plaintiff applied in the High Court for an order setting aside the arbitrator's award - Held, in dismissing the application, that the plaintiff's declaration in the proposal form contained two distinct warranties; the first being that the particulars and answers given by the plaintiff were true and complete in every respect, and the second being that no material fact had been suppressed or withheld - Held that, as the plaintiff's first warranty was false, a condition precedent to the defendant's liability under the policy had not been satisfied despite the fact that the arbitrator had adjudged that the second warranty was not false - Arbitration Act, 1954, s.38 - (1984/780 Sp. - Blayney J. - 13/2/87) [1987] IR 113

|Keenan v. Shield Insurance Co. Ltd.|

Citations:

CHARIOT INNS V ASSICURAZIONI GENERALI 1981 IR 199, 1981 ILRM 173

PAWSON V WATSON 1778 2 COWP 785

MACGILLIVRAY & PARKINGTON INSURANCE 7ED PARA 586

MACGILLIVRAY & PARKINGTON INSURANCE 7ED PARA 724

MACGILLIVRAY & PARKINGTON INSURANCE 7ED PARA 725

1 Judgment of Mr. Justice Blayney delivered the 13th day of February 1987

2 This is a claim by the Plaintiff to set aside an Arbitration Award made on the 31st October 1984. The parties have agreed that the claim raises a single issue and this has been referred to this Court for its decision. The issue is as follows:

"Having regard to the findings of fact as set out by the Arbitrator in his award herein and as enumerated (1), (2), (3), on page 3 of the said award, did the Arbitrator err in law in reaching his conclusion as set out in paragraph (4) on page 3 of the said award?"

3 The facts giving rise to the Arbitration are recited in the reference to Arbitration as follows:

4 2 "1. By a proposal form dated the 22nd September 1975 signed by the insured, the insured applied to the insurers for insurance cover in respect of the private residence of the insured at Painstown, Donadea, Naas in the County of Kildare and the contents thereof and pursuant to such proposal an insurance policy was issued by the insurers being an "all-in" policy number 80048578 in which the sum insured was given as £14,000 in respect of the buildings therein described and £2,000 in respect of the contents of same; the period of insurance being given as 24th September 1975 to 24th September 1976; and in addition to the insured the interest of Kildare County Council was noted on the said policy.

5 2. A fire took place at the said premises on or about the 8th day of October 1975 in respect of which the insured claims to be entitled to be indemnified by the insurers for destruction of the said premises and the contents thereof.

6 3. The insurers have disputed their liability to pay to the insured the sums claimed by the insured or any sum whatever, on the following grounds:-

7 (a) It is claimed that there was a misrepresentation of fact and a non disclosure of relevant information by the insured to the insurers when making the proposal for said insurance cover, of such nature as to entitle the insurers to repudiate liability under the policy and the insurers have repudiated liability accordingly."

8 Other grounds were also set out in the reference, but in the light of the terms of the award they are not relevant.

9 The Arbitrator's Award recites the first two paragraphs which I have just cited from the reference and then sets out as follows the grounds on which the Defendant disputed its liability to indemnify the Plaintiff:

10 a "(a) That by virtue of the incorrect reply to question number 8 on the proposal form and also by virtue of the declaration at the end of the proposal form signed by the insured as to the veracity of the answers to the questions and the acknowledgment that the answers would form the basis of the contract between the insured and the company there had been a failure of a condition precedent to the contract of insurance betwen the insured and the company and

11 (b) that the answer given to question 8 on the proposal form amounted to a misrepresentation or concealment of a material fact by the insured."

12 After some further recitals the Arbitrator then made his award in the following terms:

"Now I the said James A. Nugent having heard and duly considered the submission of the said parties made through their counsel and the evidence adduced on their behalf do hereby make and publish this my award of and concerning the matters so referred to me as aforesaid in the...