Breking in die Karoo kan onmeetbare omgewingskade aanrig. Waar skade gely kan word, volg versekering. Beide saakversekering en aanspreeklikheidsversekering kan ter sprake kom. Versekering teen omgewingskade wat deur besoedeling aangerig word, bied unieke uitdagings. Jare kan verloop tussen die skadeveroorsakende gebeurtenis of handeling, die manifestasie van skade, en die tydstip wanneer die versekerde ʼn versekeringseis teen sy versekeraar kan instel. Versekeringsvestigingsfeite volg die stadiums van besoedeling en die gevolge daarvan. Versekeringseise kan op ʼn gebeurtenisbasis vestig wanneer die skadeveroorsakende handeling of gebeurtenis plaasvind. Waar die skade ver in die toekoms manifesteer, sal die versekeraar wat op ʼn gebeurtenisbasis verseker het, steeds dekking moet verleen. By die ingetredeverlies-basis sal die versekeraar wat ten tye van ontdekking of manifestasie van die skade dekking verleen het, aanspreeklik wees. Waar dekking op ʼn eisebasis verleen word, sal dekking geaktiveer word wanneer die versekerde sy skade geassesseer het en in staat is om ʼn versekeringseis in te dien, ongeag wanneer die skade veroorsaak is of manifesteer. In hierdie geval erf die versekeraar historiese eise wat tot retroaktiwiteit lei. Waar ʼn versekerde sy dekking verskuif van ʼn eisebasis na ʼn gebeurtenisbasis, en skade manifesteer eers in die toekoms, kan daar geen dekking wees nie. Probleme ontstaan met die toedeling van skade waar meerdere versekeraars op verskillende basisse dekking teen dieselfde risiko verleen, of by aanspreeklikheidsversekering ten opsigte van kousaliteit en bydraende nalatigheid waar meerdere daders vir die skade aanspreeklik is.
Aan hierdie probleme is die afgelope twee dekades in die VSA en die EU-lande indringend aandag gegee. Die ontwikkeling van Suid-Afrikaanse versekerings- en omgewingsreg het egter nie hiermee tred gehou nie. Hierdie artikel bespreek die aard van die versekeringsvestigingsfeite en die problematiek van die praktiese toepassing daarvan, en ondersoek moontlike oplossings vir die komplikasies wat deur meervoudige of kumulatiewe kousaliteit en meervoudige dekking veroorsaak word.
Hydraulic fracturing, or fracking, can cause immeasurable damage to the fragile Karoo ecosystem and water resources. The old adage that where damage goes, insurance is certain to follow, most certainly applies. Insurance against environmental damage such as that which will result from fracking poses unique challenges, for both property and liability insurance. Years often pass between the polluting conduct, the eventual manifestation of the damage and the eventual submission of a claim by an insured against his insurer. Experience in the United States of America has shown that fracking causes harmful substances to leach into the soil and into groundwater resources. A migration of these substances in the polluted water could, over time, contaminate areas far beyond those in close proximity of the actual fracking activities. These types of damage traditionally manifest only in the future, and potential civil liability claims and ensuing liability and property insurance claims could drag on for many years. This will undoubtedly be the situation in the Karoo. The purpose of this contribution is to sensitise potential insurers and their insureds of the risks and complexities of insurance claims against long-term environmental damage. These issues, specifically regarding environmental liability and damage claims, have been addressed extensively in the United States and in the EU during the past two decades, yet this has not been the case in South Africa. Jurisprudence on insurance claims in this field is meagre. The development of the law of delict, insurance law and environmental law has not kept up with development in other jurisdictions. This article examines the effect of insurance trigger theories and the practical effect thereof on insurance claims for environmental damage, which will surely follow in future. Issues pertaining to multiple covers, cumulative cover and the danger of a complete absence of cover are discussed. In the case of property insurance, different insurance trigger events that activate insurance cover follow the different phases of polluting events or conduct and the resulting detrimental consequences. Insurance claims for loss or damage can vest on an act-committed basis, where the insurer who provided cover at the time the polluting act occurred, incurs liability to pay out under the policy. The insurer remains liable even where the eventual loss manifests only in the future. In this case an insured has a claim against a historical insurer, which can prove to be prejudicial if the insurance company no longer exists, policy limits are insufficient and policy provisions outdated. Where a policy is issued with a loss-occurrence or loss-manifestation trigger, the loss may be claimed when the loss or damage caused by the pollution becomes evident, irrespective of when it was caused. In the case of insurance with a claims-made trigger, the policy that is in force at the time the insured has suffered and assessed his loss and is able to submit an insurance claim, provides cover. It is irrelevant when the polluting event occurred in the past or when the loss became evident. Insurance issued on a claims-made basis leads to retroactivity where an insurer inherits older historical claims, which can be prejudicial for insurers. Where an insured changes insurers and changes from a claims-made to a loss-occurrence trigger, and a loss occurs yet manifests only in future, the insured may not enjoy coverage at all. Other complications arise where more than one insurer provides cover against the same risk but on different triggers, or where various polluters contribute to environmental harm and there is a multiplicity of liability insurance policies that provide coverage. The allocation of liability between the different insurers poses a challenge for which clear-cut solutions in law are not always available.
It becomes apparent that the loss-occurrence has in the past been a popular trigger, whereas insurers currently seem to prefer the claims-made trigger as a more practical alternative. No mandatory or general trigger theory is prescribed in South African law. The trigger that applies for a specific cover will depend on the intentions of the parties and the policy provisions. The trigger for each policy will be determined by the individual policy provisions, unless a specific mandatory trigger is prescribed by statute.
It is trite law that a liability insurance claim will succeed only where legal liability, whether statutory, delictual or contractual, exists. For liability insurance, a claim could vest when the loss or damage manifests, or only later, when a liability claim vests with the prejudiced party. Another trigger could be where legal liability for the loss is confirmed by a court, tribunal or acknowledgement of debt agreement. The last moment would be that the insurance claim vests only once the legal liability claim has been paid out by the insured wrongdoer to the prejudiced party. It would take years to recoup losses under a liability policy where the cover under the policy is triggered by either one of these last two trigger moments. It appears that, in the absence of express policy provisions to the contrary, some countries, such as the United Kingdom and countries in the EU, acknowledge the initial manifestation of the loss or damage as the trigger where liability for progressive environmental damage is concerned. This position may be criticised because insurance cover is triggered before the actual legal liability for the loss that so manifests has been confirmed.
No mandatory or general trigger theory is prescribed in South African law. Although the court in the case of Truck and General Insurance Co Ltd v Verulam Fuel Distributors CC acknowledged the moment at which the liability claim vests as the applicable trigger, the court qualified its finding that any of the other triggers could apply, depending on the policy provisions as agreed to by the parties. The viewpoint of Merkin that the preferable trigger should be where the legal liability claim is confirmed by court or tribunal or by acknowledgement of debt, can be supported. As with property insurance, multiple covers create problems regarding the allocation of liability of the different insurers. Multiple causation and contributory negligence also complicate liability insurance claims, which often requires ombudsmen, arbitrators and courts to follow innovative approaches to provide acceptable solutions. Insureds should, furthermore, note the danger of prescription, as a claim prescribes within three years from the trigger date.
Because of the extent of these claims, it is important for insureds and their risk managers, insurers, agents and brokers to be aware of the risks they face in anticipation of claims relating to property damage caused by fracking. Risk managers are urged to launch due diligence investigations on the insurance cover available before disputes arise or losses and liabilities occur which may not be covered as anticipated. For the optimal management of risk, buy-back of additional cover by the insured may be required. To pre-empt problems in future, a call could be made for the introduction by authorities of mechanisms to regulate the liability for and the insurability of claims pertaining to environmental damage and the remediation thereof. The acknowledgement of a prejudiced third party’s direct claim against the wrongdoer’s liability insurer could also benefit innocent parties and speed up the process of effective indemnification. The introduction of mandatory insurance triggers, as well as mechanisms for the allocation of liability in the event of complications that arise from multiple causation and overlapping cover, can be supported for the sake of legal certainty. Finally, a call could be made from the outset to prevent damage to ecosystems that cannot be restored after the fact.
