Insights
In the wake of COP26 and the latest Intergovernmental Panel on Climate Change’s report, climate change risks continue to make headlines around the world.
An increasingly concerning issue is the rise of D&O liability exposures related to climate change. In this white paper, Legalign Global looks at the causes of exposure, regulatory and legal developments around the world, and the implications for D&O insurers in this space.
The white paper also provides jurisdictional snapshots of the regulatory and legal developments in D&O climate-related risk for Australia, Canada, France, Germany, New Zealand, Spain, the United Kingdom and the United States.
Click on the download below to read the full paper.
Wotton + Kearney is pleased to provide our 2021 Insurance Predictions Report, looking at the major trends and issues we expect will remain in the spotlight for the insurance industry in our region this year.
It’s no surprise that this report addresses some of the horizon issues that we expect to face in the wake of COVID-19, ranging from pandemic-related mould and legionella risks to class action exposures.
We look at the way many longer-standing issues continue to evolve, including corporate governance exposures, litigation funding, the impact of climate risks, the rising stakes around cyber security, and increasing levels of regulatory pressure.
We also consider emerging issues, such as the real likelihood of a local sports injury class action, the constantly expanding circumstances behind mental health injury claims and the complex coverage questions raised given the potential application of multiple policy periods.
This publication features predictions made by senior lawyers from Wotton + Kearney’s Australian and New Zealand offices, which have been grouped and categorised by major product lines for your convenience.
You can also view more than 140 global predictions on the Informed Insurance microsite hosted by our Legalign Global colleagues, DAC Beachcroft, with contributions from all five Legalign Global alliance firms.
I hope you enjoy reading our latest predictions report. Our team of insurance specialists are available to discuss any of these issues with you.
David Kearney
Chief Executive Partner
Welcome to Wotton + Kearney’s NZ Insurance Market Trends Update, our biannual snapshot of legal trends and developments impacting claims managers, underwriters, brokers and corporates operating in the New Zealand market.
In this edition, we look at the impact of recent matters in the areas of D&O claims, representative actions and EPL. We provide updates on longer-standing issues, such as exclusions in construction defect claims, and increased levels of regulatory pressure adding to professional indemnity risks.
We also look at some emerging trends, such as the employment claims falling out of the pandemic, the need to navigate the new Privacy Act and mandatory reporting requirements for cyber incidents, and new regulatory pressures on the medico-legal sector.
If you have any queries about any of these emerging issues or would like to know more, please get in touch with our authors or key contacts. You can read the full update at the link below or directly download a PDF here.
Antony Holden
Managing Partner – New Zealand
A recent case note from the Office of the Privacy Commissioner highlights how failures to keep personal information up-to-date, and to act on requests to update information, can lead to privacy exposures.
In this short article, Wotton + Kearney’s Mark Anderson, Joseph Fitzgerald and Johnson Zhuang look at the issues raised and ways to manage similar risks.
Click on the download below to read the full update.
The International Comparative Legal Guide has released the 2020 edition of its global Product Liability guide, with a contribution written by Martin Alexander and Sarah Cloth.
In the chapter on the legal situation in Germany, BLD experts Martin Alexander and Sarah Cloth answer common and specific issues in product liability laws and regulations – including liability systems, product recall, causation, defence and estoppel, procedure, time limits, remedies, market-share liability and costs/funding.
The International Comparative Legal Guide – Product Liability 2020 is now live on ICLG.com. International experts from 21 jurisdictions comment on specifics of their respective legal systems.
Click >> here to read the ICLG article on product liability in Germany.
10 billion doses of COVID-19 vaccine will likely be needed for 7.8 billion people worldwide. Supply chains around the world are being pushed to their limits to immediately deliver a cold-stored vaccine which is also the hottest commodity on the planet. The keyword being DELIVER.
Governments around the world are setting plans in motion to ensure that logistics providers are in place and ready to deliver the vaccine all across the country.
But what does that mean for transportation on the ground, in the air and by sea?
In Canada, the Public Health Agency of Canada (“PHAC”) is sourcing Logistics Service Providers to deliver a broad range of end-to-end logistics and support services for the execution of its COVID-19 vaccine logistics strategy.
For companies fortunate enough to participate in this supply chain, there are concrete steps to protect your business when you enter into new contracts for the carriage or warehousing, storage or delivery of the vaccine.
A key way to protect your business’ participation in the vaccine supply chain is to ensure all agreements are captured in clear, concise and enforceable contracts.
1. Ensure All Independent Contractors are Incorporated Companies
If you are contracting with an independent contractor ensure that the corporation that contracts with your company is properly incorporated in a province of Canada, or federally incorporated, and is in good standing. In order to comply with this recommendation, you can ensure that for every independent contractor providing driving services, you demand, obtain and file an up-to-date Corporate Profile Report.
2. Utilize a clear, up-to-date agreement with all independent contractors and operate in accordance with the agreement
All agreements with Independent Contractors should be validly executed by both parties and kept in an accessible file. This applies to drivers, warehousemen, vaccine distribution center workers, and others who are likely retained urgently to work with this highly valuable, fragile commodity.
The terms of the Agreement are very important: the Independent Contractor Agreement should clearly differentiate between the company using the services and the corporation providing the services; describe the services provided by the independent contractor, and include information declaring that the corporation’s workers are not workers employed by the company.
3. Minimize the Company’s Control Over the Independent Contractor’s Work
The more control a company has over the independent contractor, the more likely it is that the independent contractor will be found to be an employee. Ask:
- Does the independent contractor hire their own employee drivers and then contract the services of those employees to your company?
- Can the independent contractor sub-contract the work? This will likely be prohibited.
- Does the independent contractor determine the timing and manner in which services are rendered?
- Do they carry separate and sufficient insurance?
- Does the Independent Contractor have a meaningful ability to profit or suffer a loss?
This latter consideration can be quite influential in favour of finding an independent contractor relationship, if the answer is yes.
4. Ensure that the Independent Contractor Is Not Wholly Dependent on Your Company
This final consideration is closely related to the issue of control – even though all of the above considerations are met – if the independent contractor has only one client – your company, or has been prohibited from taking loads from other customers to hold themselves available for your company to support the vaccine supply chain, an adjudicator may find the independent contractor to be an employee, or at best a ‘dependent contractor’.
If a driver has no other source of income and is dependent upon the company for an extended period of time, that driver may also be found to be a dependent contractor or an employee.
The road ahead: preparation today is the key to success tomorrow.
While COVID-19 has turned much of the world’s infrastructure on its head, these are some of the concrete steps that a company can take today to ensure a smooth transition to tomorrow.
Informed Insurance
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We curate our thought leadership around the insurance topics that matter most.
Predictions
We anticipate issues and opportunities for clients and share our future-focused insights in this annual report.