Cole v NEM Insurance

• Jurisdiction: Cayman Islands
• Judge: (Foster, Ag. J.)
• Judgment Date: 10 June 2009
• Court: Grand Court (Cayman Islands)
• Date: 10 June 2009

Grand Court

(Foster, Ag. J.)

COLE

and

N.E.M. (WEST INDIES) INSURANCE LIMITED

H.G. Robinson and M. Ramakrishnan for the plaintiff;

S.T. McCann for the defendant.

Legislation construed:

Motor Vehicle Insurance (Third Party Risks) Law (2007 Revision), s.15(1): The relevant terms of this sub-section are set out at para. 9.

s.17: The relevant terms of this section are set out at para. 8.

Road Traffic-insurance-third party risks-time starts to run against both person injured and policyholder at date of injury or damage-once action brought against insured driver within 3-year limitation period, no further limitation period applies under Motor Vehicle Insurance (Third Party Risks) Law, s.17 to claims against insurers to satisfy judgment

The plaintiff sought a declaration that the defendant insurers were liable to pay damages awarded against an employee of one of its policyholders, pursuant to s.15(1) of the Motor Vehicle Insurance (Third Party Risks) Law (2007 Revision).

The plaintiff was seriously injured in a road traffic accident on January 19th, 2005, in a motor vehicle for which the insurance policy had been issued by the defendant. On July 19th, 2007, he brought proceedings for negligence against the personal representative of the driver”s estate and the driver”s employer, in whose name the car had been insured, though the insurers denied that the driver was driving with the permission of his employer or in the course of his employment. On March 31st, 2008, the plaintiff nevertheless obtained a default judgment against the estate and sought to recover damages from the insurers.

The defendant insurers sought a preliminary declaration that the plaintiff”s claim was time-barred by the three-year limitation period in s.17 of the Motor Vehicle Insurance (Third Party Risks) Law (2007 Revision), since it had been over three years since the cause of action had accrued.

Held, dismissing the insurers” application:

Section 17 of Motor Vehicle Insurance (Third Party Risks) Law (2007 Revision) did not create a parallel three-year statutory limitation period in respect of actions brought by a third party under s.15(1) against an insurer to satisfy judgments against an employee of its policyholder. This section superseded the Limitation Law in relation to claims arising from the injury or damage involving a motor vehicle and time started to run from the date of the injury or damage. Since the liability of the insured party had been established by proceedings within the three-year limitation period, a further limitation period was not established requiring the plaintiff also to bring his action against the insurers within three years of the accident and the application would therefore be dismissed (paras. 12–14).

1 FOSTER, Ag. J.: The plaintiff was injured in a road traffic accident on the evening of January 19th, 2005. He was a passenger in a motor vehicle being driven by Mr. Dwight Diedrick (‘the driver’). The driver was killed in the accident and the plaintiff suffered very serious injuries as a result of which he has been rendered quadriplegic. The motor vehicle concerned belonged to Mr. Robert Watler, Jr. and was insured in Mr. Watler”s name. The driver was employed by...