Insurance: Its Evolution, Meaning & Tool in Risk Management: Prof Mahesh Kumar Amity Business School
Insurance: Its Evolution, Meaning & Tool in Risk Management: Prof Mahesh Kumar Amity Business School
Insurance: Its Evolution, Meaning & Tool in Risk Management: Prof Mahesh Kumar Amity Business School
Fidelity Guarantee
Marine Insurance
Insurance
Personal Accident
Burglary Insurance
Insurance
Aleatory Contract
An aleatory contract is a contract where the
values exchanged may not be equal but
depend on an uncertain event. Depending on
chance, one may receive a value out of
proportion to the value that is given.
Other commercial contracts are
communicative. A communicative contract is
one in which the values exchanged by both
the parties are theoretically equal.
Distinct Legal Characteristics of Insurance Contract
Unilateral Contract
A unilateral contract means that only one
party makes a legally enforceable promise.
In this case, only the insurer makes a legally
enforceable promise to pay claim or provide
other services to the insured.
After the first premium is paid and the
insurance is in force, the insured cannot be
legally forced to pay premium or to comply
with the policy provisions.
In contrast, most commercial contracts are
bilateral in nature.
Distinct Legal Characteristics of Insurance Contract
Conditional Contract
An insurance contract is a conditional contract i.e.
the insurer’s obligation to pay depends on whether
the insured or the beneficiary has complied with all
policy conditions.
Conditions are provisions inserted in the policy that
qualify or place limitations on the insurer’s promise
to perform.
Ex: Under a home owner policy, the insured must
give immediate notice of the loss. If the insured
delays for an unreasonable period in reporting the
loss, the insurer can refuse to pay the claim on the
grounds that a policy condition has been violated.
Distinct Legal Characteristics of Insurance Contract
Personal Contract
It means that the contract is between the
insured and insurer.
The insurer’s consent is normally required
before a property insurance policy can be
validly assigned to another party. If property is
sold to another person, the new owner may not
be acceptable to the insurer.
A life insurance policy can be freely assigned to
anyone without the insurer’s consent because
assignment does not usually alter the risk or
increase the probability of death.
Distinct Legal Characteristics of Insurance Contract
Contract of Adhesion
A contract of adhesion means the insured
must accept the entire contract with all of its
terms and conditions.
Discharge of Insurance Contract
Insurance contracts may be discharged by
1. Performance
2. Breach of contract conditions
3. Recision (Recision is an agreement by both
parties to end a contract)
Principles of Insurance
Following are the distinctive characteristics
and legal doctrines applying to insurance
contract.
1. Principle of Indemnity
2. Principle of Insurable Interest
3. Principle of Subrogation
4. Principle of Utmost Good Faith
5. Principle of Proximate Cause
6. Principle of Contribution
Principles of Insurance
Principle of Indemnity
Indemnity means the insured should be placed
in the same financial position after as before
the incurred loss.
The insured should not profit from an
insurance transaction.
Any departure from this rule should be on the
side of under compensation.
Principles of Insurance
Principle of Indemnity
There are three exceptions to the rule.
1. Life Insurance: Because the economic value of human
life cannot be measured precisely before death, life
insurance cannot be the contract of indemnity. A person
could not be put in exactly the same financial position
occupied before death because that position includes
unknown future income. However insurance companies
take care in over insurance as it creates an
unacceptable moral hazard for life insurers, who do not
want their insured worth dead more than alive.
Principles of Insurance
Principle of Indemnity
2. Replacement Cost Insurance: This insurance is written
when the insurer promises to pay an amount equal to
the full cost of repairing or replacing the property
without deduction or depreciation.
3. Valued Insurance Policy: Valued policies pay the limit of
liability whenever an insured total loss occurs. The
value of the insured property is agreed to before the
policy is written. If a total loss occurs, it may cause
more or less damage than the stated amount.
Nevertheless, the stated amount will be paid.
The principle of indemnity has two main purposes:
1. To prevent the insured property from a loss.
2. To reduce moral hazard.
Principles of Insurance
Principle of Insurable Interest
If people could insure property or life in which they had
no financial interest, insurance would become gambling.
The principle of insurable interest states the insured
must be in a position to lose financially if a loss occurs.
Insurance contracts must be supported by an insurable
interest for the following reasons:
1. To prevent gambling
2. To reduce moral hazard.
3. To measure the amount of insured loss in the property
insurance.
Principles of Insurance
Principle of Insurable Interest
Examples of Insurable Risk for Property and Liability
Insurance:
a) Ownership of property can support an insurable interest.
b) Potential legal liability can also support insurable interest. Ex.
a watch repairer, a tailor, a dry-cleaner has an insurable
interest in the property of the customer.
c) Secured creditors have insurable interest. A commercial bank
or savings and loan institutions that lends money to buy a
house has an insurable interest in the property.
d) Contractual right supports an insurable interest. Ex. A
business firm that contracts to purchase goods from abroad on
the condition they arrive safely in India has an insurable
interest in the goods because of the loss of the profits if
merchandise does not arrive.
Principles of Insurance
Principle of Insurable Interest
Insurable Interest for Life Insurance:
The law considers the insurable interest
requirement to be met whenever a person
voluntarily purchases LI on his life. Also when you
apply for life insurance on your life, you can name
anyone as the beneficary. The beneficary is not
required to have an insurable interest in your life.
If you wish to purchase a life insurance policy on
the life of another person, however, you must have
an insurable interest in that person’s life.
Principles of Insurance
Principle of Insurable Interest
Close family ties or marriage will satisfy the
insurable interest requirement in life insurance.
Remote family relations will not support an
insurable interest. Ex. Cousins cannot insure each
other unless pecuniary relationship is present.
In case of pecuniary relationship where there is no
relationship by blood or marriage, i.e. one person
may be financially harmed by death of another, the
insurable interest requirement in life insurance can
be met. Ex: A corporation can insure the life of an
outstanding salesperson, one business partner can
insure the life of the other person etc.
Principles of Insurance
Principle of Insurable Interest
When must an Insurable Interest Exist
In property insurance, the insurable interest must exist
at the time of loss.
Insurable interest at the time of insurance contract but
not at the time of the loss (Loss to property after it has
been sold).
Insurable interest does not exist at the time of
insurance contract but at the time of loss (Insurance of
return cargo in ocean marine insurance).
In life insurance, the insurable interest requirement
must be met only at the inception of the policy, not at
the time of death. Life insurance is not the contract of
indemnity but is a valued policy that pays a total sum
upon the insured's death.
Principles of Insurance
Principle of Insurable Interest
Example: If Rekha takes out a policy on her
husband’s death and later gets a divorce. She
is entitled to the policy proceeds upon the
death of her former husband if she has kept
insurance in force.
Principles of Insurance
Principle of Subrogation
Subrogation means substitution of the insurer in
place of the insured for the purpose of claiming
indemnity from a third person for a loss covered by
insurance. The insurer is therefore entitled to
recover from a negligent third party any loss
payment made to the insured.
Subrogation does not apply if a loss payment is not
made. However, to the extent that a loss payment
is made, the insured gives to the insurer legal
rights to collect damages from the negligent third
party.
Principles of Insurance
Principle of Subrogation
Purpose of Subrogation: It has three basic
principles:
1. Subrogation prevents the insured from collecting
twice for the same loss. The principle of indemnity
would be violated because the insured would be
profiting from a loss.
2. Subrogation is used to hold the guilty person
responsible for the loss.
3. Subrogation helps to hold down the insurance
rates. Subrogation recoveries can be reflected in
the rate making process, which tends to hold rates
below where they would be in the absence of
subrogation.
Principles of Insurance
Principle of Subrogation
Importance of Subrogation: There are five important
corollaries of the principle of subrogation:
1. The general rule is that by exercising its subrogation
rights, the insurer is entitled only to the amount it has
paid under the policy. One commonly held view is that
the insured must be reimbursed in full for the loss; the
insurer is then entitled to any remaining balance up to
the insurer’s interest without the remaining going to the
insured.
2. The insured cannot impair the insurer’s subrogation
rights. The insured cannot do anything after a loss that
prejudices the insurer’s right to proceed against the
negligent third party. If the insurer’s right to subrogate
against a loss is adversely affected, the insurers right to
collect from the insurer is forfeited.
Principles of Insurance
Principle of Subrogation
3. The insurer can waive its subrogation rights in the
contract. The insurer may decide not to exercise its
subrogation rights after a loss occurs. The legal
expenses may exceed the possible recovery; a counter
claim against the insured or insurer may be filed by the
alleged wrong doer, the insurer may wish to avoid the
embarrassment to insured or the insurer company may
wish to maintain good relations.
4. Subrogation dos not apply to life insurance. Life
insurance is not a contract of indemnity and subrogation
has relevance only for contracts of indemnity.
5. The insurer cannot subrogate against its insured. If the
insurer could recover a loss payment for a covered loss
from an insured, the basic purpose of purchasing the
insurance would be defeated.
Principles of Insurance
Principle of Utmost Good Faith
Insurance contract is based on the principle of
utmost good faith-that is, a high degree of honesty
is imposed on both parties to an insurance contract
than is imposed on parties to other contracts.
The principle of utmost good faith is supported by
three legal doctrines: representations,
concealment and warranty.
Representations are statements made by the
applicant for insurance.
The legal significance of a representation is that
the insurance contract is voidable at the insurer’s
option if the representation is (a) material (b) false
and (c) relied on by the insurer.
Principles of Insurance
Principle of Utmost Good Faith
Material means that if the insurer knew the true
facts, the policy would not have been issued, or it
would have been issued on different terms.
False means that the statement is not true or is
misleading.
Reliance means that the insurer relies on the
misrepresentation in issuing the policy at a
specified premium.
An innocent misrepresentation (not intentional) of
material fact makes the contract voidable.
Principles of Insurance
Principle of Utmost Good Faith
Concealment
A concealment is intentional failure of the
applicant for insurance to reveal a material
fact to the insurer.
To deny a claim based on concealment,
insurer must prove to things:
1. The concealed fact was known by the insured
to be material.
2. The insured intended to defraud the insurer.
Principles of Insurance
Principle of Utmost Good Faith
Warranty
A warranty is a statement of fact or promise made by
the insured, which is part of the insurance contract and
must be true if the insurer is to be liable under the
contract.
Ex. In exchange for reduced premium, the owner of a
retail store may warrant that an approved burglary and
robbery alarm will be operational at all times. The
clause describing the warranty becomes part of the
contract.
Warranty can be affirmative warranty (something has
happened or exists) or something will happen
(promissory warranty). The warranties can be
written/expressed warranties or understood/implied
warranties.
Principles of Insurance
Principle of Proximate Cause
The principle of proximate cause is based on the
principle of cause and effect.
Insurance companies will only make good the loss
which has occurred due to insured peril and not
otherwise.
Ex 1: Suppose Rakesh takes personal accident
policy which does not cover for sickness. He met
with an accident. He was injured but lay on the road
for hours in that cold and rainy night before
somebody came and transferred him to the hospital.
He fell sick due to pneumonia and lost his life.
The insurer will pay only the cost of hospitalization
and nothing else.
Principles of Insurance
Principle of Proximate Cause
Ex 2: In one ship, oranges and lemons were
insured a cargo against collision of ship. The ship
actually collided and in emergency was put into a
port for repairs. For convenience of repairs, the
cargo was unloaded and reloaded on the ship
after repairs. The fruits when reached the
destination had been destroyed.
Here, which is nearest cause of loss?
Collision or loading and unloading.
The perishable nature of the fruits and
unloading-loading of cargoes were the proximate
causes. This was not insured and hence no
damages were paid.
Principles of Insurance
Principle of Contribution
This refers to the sharing of the loss between
co-insurers when insured takes multiple policies
against one loss and one intent.
Principle of contribution says that the insurer
paying the claim has the right upon other
insurers to pass or transfer part of his burden.
Insurers will share the total loss ratably.
The right arises only after paying the insured for
his loss.
Principles of Insurance
Principle of Contribution
Essentials of this principle are:
1. The insured should be same for all contracts.
2. The policies should cover the same peril, which
caused the loss.
3. All protect the same interest of the same
insured.
4. All policies should be in force when loss occurs.
Consequences of Ignoring the Principles
People might take policies on non existing things
(Principle of Insurable Interest)
People may do double insurance and hide policies already
taken.
( Principle of Indemnity)
A few dishonest policies will take huge claims from the
insurance company and suffering will be caused to many
innocents.
(Principle of Insurable Interest and Principle of Indemnity)
People will insure anything and everything without insurable
interest.
(Principle of Insurable Interest)
People will not guard/maintain their assets once insured.
(Principle of Insurable Interest)
Whole insurance system may crumble.