Protecting the parties to an insurance contract in insurance cover disputes

Abstract

Insurance is undeniably essential in every society as risk can occur at any time. Hence, insurance cover is a necessity and therefore it becomes important to ensure that those who take up insurance receive the full benefit of such cover. The purpose of this research was to illustrate how important it is ensure that there is adequate protection to those that are insured under a policy of insurance. Therefore it was submitted that an understanding of the fact that a contract of insurance is like any other contract was an essential first step in ensuring adequate cover or protection. This paper therefore traced the formation process of insurance contracts. Further, the special nature of insurance contracts was essential to note in that the contract of insurance being of the Utmost good faith means that both the insured and the insurers have a duty to disclose all material facts. This is of importance in the sense that misrepresentation and non- disclosure rules are at play in insurance contracts. It was therefore important at this stage to examine the impact of contract law on insurance policies as the contract aspect makes insurance policy claims more susceptible to the insurers avoiding claims where there are misrepresentations or in instances where the insured does not disclose certain facts. At this point, there was a need to examine some of the duties that parties to an insurance contract are obligated to perform as these play a role in safeguarding the policy and ensuring that a claim made is successful. In addition, the research embarked on an analysis of how the courts in Zambia interpret insurance cover disputes following the case of Mattaniah Investments Ltd v Zambia State Insurance Corporation Furthermore, the research analyzed how the courts in other jurisdictions particularly Canada, South Africa and America have interpreted insurance disputes. Lastly, this research outlined some recommendations as possible mechanisms to ensure that the insured and insurers alike are protected under the insurance contract.