HIH Casualty v. Chase Manhattan
The House of Lords had held that a clause waiving the insured's duty to make "any representation, warranty or disclosure of any nature" will not, on its own and in the absence of express words, exclude the similar duty of the broker. But a clause exempting the insured from any liability "of any nature" in respect of information provided to insurers by other parties, including the broker, will exempt the insured from liability for the broker's innocent or negligent misrepresentations and non-disclosures, but not for his fraudulent misrepresentations.
Public policy dictates that the insured cannot exclude his liability for his own fraudulent misrepresentation, but the question whether this extends to the insured's ability to exclude his liability for his broker's fraud was left unresolved - the Law Lords finding by majority that, even if such an exclusion was possible in principle, only the very clearest wording would achieve this result.
DMC’s Category Rating: Developed
This case note is based on an Article in the March 2003 Edition of the ‘Bulletin’, published by the Marine and Insurance teams at the international firm of lawyers,DLA. DLA is an International Contributor to this website.
As Lord Hoffman put it, this is a "form of insurance in which the players need to have their wits about them". The commercial success of a film is notoriously difficult to predict, and a great deal will depend on how the lender’s revenue entitlement is defined – in particular, what prior deductions are made before he gets his share.
This type of insurance product was first developed about ten years ago by a company called Screen Partners Ltd and a specialist subsidiary of Heath Insurance Broking Limited. Lenders taking part in such a scheme would make it a condition of their loan that the borrower (the production or distribution company) had to obtain this insurance and pay the premium and any other expenses. Heaths would then act in a traditional broker role in presenting the risk to underwriters on behalf of the prospective insured.
In this case, contracts of insurance for five films were placed between June 1996 and March 1997. Two (for The Mirror has Two Faces and The People vs Larry Flynt) were placed facultatively, and the remaining three by declarations off a line slip. The terms of all three policies were identical in all material respects.
Unfortunately, there were substantial shortfalls in the revenue assigned to Chase in respect of all five films. Chase claimed under the policies, but insurers repudiated liability on the grounds of misrepresentation and non-disclosures, either fraudulent or negligent, made, not by Chase, but by Heaths.
Insurers alleged that Heaths had misrepresented that the risk was substantially the same as a previous arrangement set up in 1992, when in fact crucial details had changed. In particular, the revenue stream was now subject to numerous prior deductions of uncertain amount. They also claimed that Heaths had failed to disclose a number of material facts, including that the scale of these deductions made a shortfall virtually certain, and the reasons why the original lead insurer had chosen to withdraw. Chase, however, argued that insurers were not entitled to avoid because, even if there had been non-disclosures and misrepresentations, a Truth of Statement clause in each policy expressly waived insurers’ rights to rely on misrepresentations and non-disclosures made by Chase, or by Heaths acting as their agents.
The Truth of Statement clause
Were it not for the Truth of Statement clause (and assuming they could prove the alleged misrepresentations and non-disclosures), insurers would have been entitled to avoid the policy for breaches of the duty of utmost good faith. This duty, set out in full in the Marine Insurance Act 1906, requires that any material representations made by the insured or his agent during negotiations for the contract must be true (section 20) and that the insured has a positive obligation to disclose all material circumstances (section 18). In addition, an agent such as a broker has an obligation to disclose to the insurer any material circumstance he knows about - and he will be deemed to know every circumstance, which, in the ordinary course of business, he ought to know, or which ought to have been communicated to him (section 19).
The scope of the clause
The Court of Appeal held that the effect of the clause was to waive any remedies insurers had against Chase for Heaths’ negligent misrepresentation or non-disclosure, but that it did not operate to waive insurers’ remedies if they were able to prove Heath had acted fraudulently. If that were the case, insurers would be able to avoid the contract and claim damages against Chase in the tort of deceit. Both parties appealed to the House of Lords.
It was accepted that the general intention behind the clause was to prevent Chase from losing the benefit of the policies because it had failed to disclose material circumstances which it was deemed to know or because of innocent misrepresentations or non-disclosures on the part of its agents. Chase was not in the usual position of an insured, who normally can be expected to have special knowledge of the risk. In this situation, Chase was in no better a position to assess the film projects than the insurers were. Insurers, however, did not accept that the clause covered negligent or fraudulent misrepresentations or non-disclosures by Heaths.
House of Lords Judgment
Chase argued that, although the broker had a duty to disclose that was independent of the insured’s duty, it made no sense to say the broker was bound to disclose something that, had it been disclosed by the insured, would have been subject to this waiver. One of the provisions of section 18 of the Marine Insurance Act is that the insured need not disclose "any circumstances as to which information is waived by the insurer".
The House of Lords rejected this argument. Had insurers waived disclosure of a particular circumstance by the insured because they were prepared to treat that circumstance as not being material then, the House agreed, it would be illogical to say that the broker had to disclose it on the insured’s behalf. But this all depended on being able to identify the circumstance in question. Phrase 6 could not be construed as a waiver of any particular circumstance, or of all circumstances. The waiver was personal to the insured and did not impinge on Heaths' duty of disclosure
Phrase 7, however, went on to say that Chase would have no liability "of any nature" in respect of any information provided by any other parties, and phrase 8 provided that such information provided by or non-disclosure by other parties would not be grounds for insurers to avoid the policy.
Chase argued that these phrases protected them from liability for any representation or non-disclosure, whether fraudulent, negligent or otherwise, because the wording was wide enough to cover all such representations. Insurers, however, maintained that, although phrases 7 and 8 covered innocent misrepresentations or non-disclosures by Heaths, they could not be stretched to cover negligence or fraud. Well-established guidelines on restricting liability for negligence provide that such clauses will always be very narrowly construed. If the clause does not expressly exclude liability for negligence, the court will be very reluctant to find that it does so impliedly, unless there is no other possible interpretation. If, therefore, the clause can be construed to cover some other cause of action, it will not be found to cover negligence as well (Canada Steam Ship Lines Limited v The King  AC 192). As for fraud, Insurers argued that it was public policy that a party could not exclude liability for its own fraud, and this clearly extended to the fraud of its agent.
On the question of negligence, the House of Lords unanimously agreed that phrases 7 and 8 barred insurers from seeking any remedy for the negligent misrepresentations or non-disclosures of Chase’s agents. It was true that neither phrase expressly mentioned negligence and that, following the Canada Steamship guidelines, this would ordinarily mean liability for negligence was not excluded. But it was not appropriate to follow a mechanistic construction. The clause had to be read in the context of the whole agreement and against the admissible background.
Applying this approach, the comprehensive wording ("no liability of any nature") had clearly been chosen to provide Chase with extended immunity from insurers avoiding the contract and also for any liability for damages that, in theory at least, might be awarded under section 2(1) of the Misrepresentation Act 1967. There was nothing in the wording to suggest the parties had not intended the exemption to include negligent misrepresentation or non-disclosures by Heaths.
As for fraud, the majority of the House of Lords agreed with the Court of Appeal that the clause did not cover liability for fraudulent misrepresentations by Heaths as Chase’s agent. Fraud "is a thing apart". A party entering into an agreement is entitled to assume the honesty and good faith of the other. Consequently, public policy dictates that a contracting party cannot exclude liability for his own fraud. The question here, however, was whether this rule extended to the party’s agent.
The Court of Appeal decided it did not, but the majority of the House of Lords avoided resolving this issue, relying instead on the absence of any express exclusion. If a party intends to exclude his liability for the fraudulent misrepresentations of his agent, he must use the clearest, most unmistakeable terms in the contract. The Truth of Statement clause contained no such clear wording. Fraudulent misrepresentations made by Heaths, therefore, would, if proved, entitle insurers to avoid the contract and claim damages in the tort of deceit.
The House was uncertain whether fraudulent non-disclosure could exist independently of fraudulent misrepresentation but a majority of the Law Lords decided that if such a thing did exist, it, too, would not be excluded under the Truth of Statement clause.
The answer to the preliminary issues, therefore, was that insurers would be entitled to avoid the policy only on the grounds of fraudulent misrepresentation or non-disclosure by Heaths as Chase’s agent, and would be able to seek damages for fraudulent misrepresentation or for fraudulent non-disclosure amounting to fraudulent misrepresentation.
The dissenting voice was Lord Scott’s, who thought that the clause also covered the fraudulent actions of the agent. In his view, the literal meaning of the words used included all information supplied or withheld for whatever reason, and there was no basis on which to give the words a restricted scope. The commercial purpose of the clause was to insulate Chase from the entire broking process. Whilst he accepted the need for a rule that a party cannot be allowed to exclude liability for his own fraud, he could see no reason why a party should not be able to exclude his contractual liability for fraudulent misrepresentation by his agent.
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