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Professional Indemnity Policy (Canada)
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Professional Indemnity Policy
(Canada)
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SCHEDULE........................................................................................................................................... 5
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1. INSURED ........................................................................................................................................... 5
2. INSURERS ......................................................................................................................................... 5
3. POLICY PERIOD ................................................................................................................................ 6
4. PREMIUM .......................................................................................................................................... 6
5. TERRITORIAL LIMITS........................................................................................................................ 6
6. LIMIT OF LIABILITY (ALL INSURING CLAUSES COMBINED)............................................................. 7
7. EXCESS ............................................................................................................................................. 7
8. GOVERNING LAW ............................................................................................................................. 7
9. JURISDICTION FOR DISPUTE RESOLUTION ....................................................................................... 7
10. PROPOSAL DATE ............................................................................................................................ 7
11. NOTICES ......................................................................................................................................... 7
12. OPTIONAL EXTENSIONS AND ENDORSEMENTS .............................................................................. 8
SEVERAL LIABILITY NOTICE ................................................................................................................... 8
PROFESSIONAL INDEMNITY POLICY (CANADA).................................................................... 9
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1. INSURING CLAUSE .......................................................................................................................... 9
1.1.1 PROFESSIONAL INDEMNITY ......................................................................................................... 9
1.2 RETROACTIVE DATE ...................................................................................................................... 9
1.3 DEFENCE COSTS ............................................................................................................................. 9
2. DEFINITIONS ................................................................................................................................. 10
2.1 CLAIM .......................................................................................................................................... 10
2.2 COMPENSATORY DAMAGES ......................................................................................................... 10
2.3 DEFENCE COSTS ........................................................................................................................... 10
2.4 EXCESS ......................................................................................................................................... 10
2.5 INDEPENDENT MEDICAL PRACTITIONER...................................................................................... 10
2.6 INSURED ....................................................................................................................................... 11
2.7 PROFESSIONAL SERVICES............................................................................................................. 11
2.8 POLICY PERIOD ............................................................................................................................ 11
2.9 PROPOSAL .................................................................................................................................... 11
2.10 PRODUCT .................................................................................................................................... 11
2.11 TERRORISM ................................................................................................................................ 12
3. LIMIT OF LIABILITY ..................................................................................................................... 12
4. EXCLUSIONS .................................................................................................................................. 13
4.1 PRIOR CIRCUMSTANCES ............................................................................................................... 13
4.2 WRONGFUL ACTS ......................................................................................................................... 13
4.3 EMPLOYERS’ LIABILITY ............................................................................................................... 13
4.4 PRODUCTS LIABILITY ................................................................................................................... 13
4.5 DIRECTORS AND OFFICERS LIABILITY ......................................................................................... 14
4.6 MOTOR, AVIATION AND MARINE LIABILITY ............................................................................... 14
4.7 CARE, CUSTODY AND CONTROL .................................................................................................. 14
4.8 EXCESSIVE CARE LEVELS ............................................................................................................ 14
4.9 INTERNET ACTIVITIES .................................................................................................................. 14
4.10 SEXUAL CONDUCT ..................................................................................................................... 14
4.11 RADIOACTIVE CONTAMINATION ................................................................................................ 15
4.12 WAR ........................................................................................................................................... 15
4.13 TERRORISM ................................................................................................................................ 15
4.14 POLLUTION ................................................................................................................................. 15
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4.15 FINES AND PENALTIES................................................................................................................ 15
4.16 CROSS LIABILITIES ..................................................................................................................... 16
4.17 TOXIC MOULD ............................................................................................................................ 16
4.18 NON-PECUNIARY OR INJUNCTIVE RELIEF ................................................................................... 16
4.19 FEE DISPUTES ............................................................................................................................. 16
4.20 ASBESTOS ................................................................................................................................... 16
4.21 SILICA......................................................................................................................................... 16
4.22 ELECTIVE COSMETIC SURGERY ................................................................................................. 17
5. CONDITIONS .................................................................................................................................. 17
5.6 CONTROL OF CLAIMS ................................................................................................................... 19
5.13 CONTRACT INTEGRITY ............................................................................................................... 20
6. ADDITIONAL CLAUSES AND EXTENSIONS ................................................................................... 22
6.1 INSURANCE OF INDEPENDENT PROFESSIONAL PRACTITIONERS .................................................. 22
6.2 DUTY TO DEFEND EXTENSION ..................................................................................................... 22
6.3 GOOD SAMARITAN ACTS ............................................................................................................. 22
6.4 AIDS AND HEPATITIS NON-A SUB-LIMIT OF LIABILITY ............................................................. 23
6.5 SPECIAL CONDITIONS FOR QUEBEC ............................................................................................. 23
6.6 EXTENDED REPORTING PERIOD EXTENSION................................................................................ 24
6.7 ROUND THE CLOCK REINSTATEMENT CLAUSE ............................................................................ 26
6.8 LOSS OF DOCUMENTS EXTENSION ............................................................................................... 27
6.9 LEGAL EXPENSES EXTENSION ..................................................................................................... 28
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SCHEDULE OF INDIVIDUAL PRACTITIONERS....................................................................... 33
SERVICE OF SUIT CLAUSE (CANADA) ...................................................................................... 34
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NUCLEAR INCIDENT EXCLUSION CLAUSE LIABILITY DIRECT (BROAD) CANADA . 35
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Schedule
1.
Insured
[Named Insured]
of
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[address]
Except as may be expressly stated otherwise in this Policy, the
benefit due under this Policy is payable to the first Insured
named above or to his order.
The first Insured named above shall be deemed to be the sole
and irrevocable agent of each and every other Insured under
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this Policy for the purpose of
i)
ii)
iii)
2.
instructing or agreeing with the Insurer(s) on alterations
of the Policy coverage;
making
or
receiving
adjustments of premium;
payments
of
premiums
or
giving to or receiving from the Insurer(s) all notices
contemplated by the Policy.
Insurers
The party or parties specified elsewhere for the purpose, each
for their own share of the premium and losses and not for the
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share of any other.
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3.
Policy Period
From (inception date) to
(expiry date)
Both dates at 12.01 am standard time at the address of the
Insured specified above.
This Policy will not automatically renew: notice is hereby given
that cover will terminate and not be renewed at the expiry date
unless a new agreement is reached between the Insurers and
the Insured. This is for the purpose of review for the sake of
those jurisdictions where tacit renewal applies and does not
year.
Retroactive Date:
Premium
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4.
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signal Insurers’ unwillingness to renew the cover from year to
Premium Payment Warranty
It is warranted that all premiums due to the Insurers under this
Policy are paid by the premium due date stated below. Nonreceipt by the Insurers of such premiums by midnight of the
premium due date shall render this Policy void with effect from
the inception date stated in Item 3 of the Schedule.
Premium Due Date:
Territorial Limits
5.1
Third Party Jurisdictions covered by the Policy as per first
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5.
5.2
paragraph of Insuring Clause:
Canada
This Policy only applies to the Insured’s business carried
on, in or from premises situated in Canada.
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6.
Limit of Liability (All Insuring Clauses combined)
Any One Occurrence or Claim
including all Defence Costs:
In the aggregate during the Policy Period
including all Defence Costs:
7.
Excess
Each and every Claim or series of
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Claims arising from one common cause,
including Defence Costs:
8.
Governing Law
Canada
Jurisdiction for Dispute Resolution
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9.
Canada
Proposal Date
11.
Notices
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10.
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12.
Optional Extensions and Endorsements
Whether or not operative
6.2
Duty to Defend
Included
6.3
Good Samaritan Acts
Included
6.4
AIDS and Hepatits Non-A
No sub-limit
6.5
Special Conditions for Quebec
Not Operative
6.6.
Extended Reporting
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Clause Reference
Additional Premium
Not included.
Period
RTC Reinstatement Clause
Not included
6.8
Loss of Documents
Not included
6.9
Legal Expenses
Not included
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6.7
Sub-limit
Sub-limit
Several Liability Notice
The subscribing Insurers’ obligations under contracts of
insurance to which they subscribe are several and not joint and
are limited solely to the extent of their individual subscriptions.
The
subscribing
Insurers
are
not
responsible
for
the
subscription of any co-subscribing insurer who for any reason
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does not satisfy all of part of its obligations.
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Professional Indemnity Policy (Canada)
Insuring
Clause
This Policy indemnifies the Insured in respect of the Insured’s
legal liability to pay Compensatory Damages in accordance with
the laws of the country/ies specified in Item 5.1 of the Schedule
resulting from any covered Claims which are both made against
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the Insured and notified to Insurers during the Policy Period.
The cover provided is subject to the Limit of Liability and to the
terms, conditions and exclusions contained herein and is
granted in consideration of the payment of the premium stated
in the Schedule and in reliance upon the statements made by
the Insured in the Proposal, which statements are deemed to
form the basis of and be incorporated in this Policy.
The Policy only covers Claims in excess of the sum
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1.1
specified in the Schedule as the Excess arising in respect
of
1.1.1 Professional Indemnity
the Insured’s liability for death, bodily injury, mental
injury, illness or disease of or to any patient of the
Insured caused by any act, error or omission
committed by the Insured which is or is alleged to
be negligent and which arises from the provision of
Professional Services;
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1.
1.3
Retroactive Date
all arising out of acts, errors, omissions, circumstances or
events occurring or committed only on or after the
Retroactive Date specified in Item 3 of the Schedule. If no
date is specified there, the inception date of this Policy
will become the Retroactive Date;
Defence Costs
and the Policy will also indemnify the Insured for Defence
Costs incurred in connection with any such Claim.
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Definitions
Certain words or phrases in the Policy have been specially
defined or qualified. These have that same meaning or
qualification wherever used.
The
Policy
2.1
Claim
includes
this
endorsements or extensions.
Policy,
the
Schedule
and
any
any Claim, suit or proceedings served upon or issued against
the Insured or oral or written allegation communicated to the
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Insured; a request by or on behalf of a patient for medical
records shall not of itself constitute a Claim;
2.2
Compensatory Damages
sums payable in respect of any judgment, award or settlement
including third party claimants' fees, costs and expenses for
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which the Insured is held liable;
2.3
Defence Costs
reasonable and necessary fees and expenses incurred by or on
behalf of the Insured with the prior written consent of Insurers
and resulting from:
2.3.1 investigation, defence or settlement of any Claim;
2.3.2 attendance or representation at or in connection with any
examination, enquiry or proceedings commissioned by
any official, administrative or regulatory body exercising
due authority over any Insured in relation to any
circumstance which has a direct relevance to a Claim; and
2.3.3 any appeal from any of the proceedings mentioned in
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2.
2.4
2.3.1 and 2.3.2 above.
Excess
the amount specified as such in Item 7 of the Schedule which
the Insured must incur for which the Insurers are not liable and
in excess of which this Policy is to apply.
2.5
Independent Medical Practitioner
a medical or dental practitioner or healthcare provider working
at or providing services at or out of the Insured’s premises or
who may expose the Insured to liability but who is not an
Insured under this Policy.
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2.6
Insured
2.6.1 the entity or entities named in Item 1 of the Schedule
2.6.2 any person, other than an individual practitioner (whether
or not named in the Schedule of Individual Practitioners),
who is, has been or may, during the Policy Period become,
a principal, partner, director, employee or volunteer of the
Insured named in the Schedule, including part time and
temporary employees, students, locums and agency
nurses but only in respect of Claims arising from work
undertaken on behalf of the Insured;
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2.6.3 the personal representatives of the estate of any person
who would otherwise be indemnified under this Policy;
2.6.4 any individual practitioner named or referred to in the
Schedule of Individual Practitioners, if any, employed by
the Insured, but only in respect of Claims arising from
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work undertaken on behalf of the Insured.
No entity defined above is an Insured with respect to acts or
omissions committed or alleged to have been committed during
a period of suspension of that entity’s license to practise.
2.7
Professional Services
the provision of those professional services by the Insured as
set out in the Proposal which forms part of this Policy.
2.8
Policy Period
the period set out in Item 3 of the Schedule.
Proposal
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2.9
the written proposal or declaration bearing the date stated in
Item 10 of the Schedule and/or any presentation, statements,
declarations, warranties or information upon which the Insurers
have relied made by or on behalf of the Insured to the Insurers
for the insurance evidenced by this Policy and a copy of which is
attached hereto.
2.10 Product
any solid, liquid, or gaseous substance or device or component
part thereof, designed, manufactured, constructed, altered,
packaged, repaired, serviced, treated, administered, sold,
supplied or distributed by or on behalf of the Insured but not
any food or drink provided primarily for the benefit of staff,
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visitors or patients for consumption on the Insured’s premises.
2.11 Terrorism
an act, including but not limited to the use of force or violence
and/or the threat thereof, of any person or group(s) of persons,
whether acting alone or on behalf of or in connection with any
organisation(s) or government(s), committed for political,
religious, ideological or similar purposes including the intention
to influence any government and/or to put the public, or any
section of the public, in fear.
Liability
The Insurers’ total liability during the Policy Period in respect of
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Limit of
all Compensatory Damages and Defence Costs combined shall
not exceed the Limit of Liability specified in Item 6 of the
Schedule and the Insurers shall not be liable to pay any sums
after the Limit of Liability has been exhausted by payment of or
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agreement to pay Compensatory Damages and Defence Costs.
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3.
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Exclusions
The Policy does not cover
4.1
Prior Circumstances
any Claim or Defence Costs directly or indirectly caused by or
arising out of any event or circumstance which might
reasonably be expected to give rise to a Claim being made
against the Insured and which the Insured knew about or should
have foreseen or discovered prior to the inception date of this
Policy. Where the Insured has received either an oral or written
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communication from or on behalf of a patient, the Insured will
be deemed to have been aware of such a circumstance;
4.2
Wrongful Acts
any Claim or Defence Costs directly or indirectly caused by or
arising out of
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4.2.1 any deliberate or wilful misconduct of the Insured
4.2.2 any dishonest, fraudulent or criminal act of the Insured
4.2.3 the performance of any activities of the Insured whilst a
person performing them is under the influence of
intoxicants or narcotics;
4.3
Employers’ Liability
any Claim or Defence Costs directly or indirectly caused by or
arising out of death, bodily injury, mental injury, illness or
disease of or to any person under a contract of service or
apprenticeship with the Insured or under the
Insured’s
supervision as an employee or for any breach of any obligation
owed by the Insured as an employer to any such person,
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4.
including any Claim in respect of which compensation is
available or required under any Workmen’s Compensation Law
and/or similar legislation.
However, this exclusion shall not apply to any Claim arising out
of any death, bodily injury, mental injury, illness or disease of
any such person who is or becomes a patient of the Insured
entirely independently of their employment;
4.4
Products Liability
any Claim or Defence Costs directly or indirectly caused by or
arising out of any Product;
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4.5
Directors and Officers Liability
any Claim or Defence Costs made against any director or officer
of the Insured, directly or indirectly caused by or arising out of
any unlawful, wrongful or negligent act, error or omission or
breach of trust, breach of warranty of authority or breach of
duty, whether actual or alleged, committed, permitted or
attempted by such director or officer where such Claim is made
solely by reason of his holding the position of director or officer
and having acted in that capacity;
4.6
Motor, Aviation and Marine Liability
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any Claim or Defence Costs directly or indirectly caused by or
arising out of the ownership, possession or use by or on behalf
of the Insured of any motor vehicle or trailer or any aircraft,
watercraft or hovercraft.
This exclusion shall not apply to death, bodily injury, mental
injury, illness or disease of or to patients being transported by
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the Insured or accompanied by the Insured in the course of
transportation.
4.7
Care, Custody and Control
any Claim or Defence Costs directly or indirectly caused by or
arising out of loss of or damage to property owned or used or
hired by or otherwise in the care, custody or control of the
Insured
4.8
Excessive Care Levels
any Claim or Defence Costs directly or indirectly caused by or
arising out of actual or alleged breach of a contract under which
the Insured has agreed to exercise a duty of care and skill
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beyond such care and skill as is usual to exercise in the
Insured’s business as stated in the Proposal;
4.9
Internet Activities
any Claim or Defence Costs directly or indirectly caused by or
arising out of any advice, diagnosis or treatment given or
information of any type published or promoted by the Insured
over the Internet or via any computer or any electronic system
accessible outside the Insured’s premises;
4.10 Sexual Conduct
any Claim or Defence Costs directly or indirectly caused by or
arising out of actual or attempted sexual relations, sexual
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contact or intimacy, sexual harassment or sexual exploitation
happening under the guise of treatment or in the course of
treatment;
4.11 Radioactive Contamination
any Claim or Defence Costs directly or indirectly caused by or
arising
out
of
ionising
radiations
or
contamination
by
radioactivity from any nuclear fuel or from any nuclear waste
from the combustion of nuclear fuel or from the radioactive,
toxic, explosive or other hazardous properties of any explosive
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nuclear assembly or nuclear component thereof;
4.12 War
any Claim or Defence Costs directly or indirectly caused by or
arising out of war, invasion, act of foreign enemy, hostilities or
warlike operations (whether war be declared or not), civil war,
rebellion, revolution, insurrection, civil commotion assuming
the proportion of or amounting to a popular uprising, military
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or usurped power, martial law, riot or the act of any lawfully
constituted authority.
4.13 Terrorism
any Claim or Defence Costs directly or indirectly caused by or
arising out of Terrorism.
It is understood and agreed that in any Claim and in any action,
suit or other proceedings to enforce a Claim under this
Insurance for loss or damage or legal liability, the burden of
proof that such Claim does not fall within this exclusion shall be
upon the Insured.
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4.14 Pollution
any Claim or Defence Costs directly or indirectly caused by or
arising out of:
4.14.1
seepage, pollution or contamination
4.14.2
the cost of removing, nullifying or cleaning up
seeping, polluting or contaminating substances
4.15 Fines and Penalties
fines, penalties, punitive or exemplary damages, aggravated
damages or multiplication of compensation awards howsoever
and by whomever incurred;
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4.16 Cross Liabilities
any Claim or Defence Costs made by one Insured against any
other Insured;
4.17 Toxic Mould
any Claim or Defence Costs directly or indirectly caused by or
arising out of
4.17.1 the formation, growth, presence, release, dispersal,
containment, removal, inhalation or ingestion of, contact
with, exposure to, testing for or detection or monitoring
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of or failure to detect or monitor or warn about bacteria,
moulds, fungi, spores or similar growth or organic matter,
including but not limited to aspergillus, penicillium, or
any strain or type or stachybotris on or within a building
or structure, including its contents.
4.17.2 the abating, testing for, monitoring, cleaning up,
removing, containing, treating, detoxifying, neutralizing,
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remediating or disposing of, or in any way responding to,
or assessing the effects of, bacteria, moulds, fungi,
spores or similar growth or organic matter, including but
not limited to aspergillus, penicillium, or any strain or
type or stachybotris, by any Insured or by any other
person or entity;
4.18 Non-pecuniary or injunctive relief
any Claim or Defence Costs directly or indirectly caused by or
arising out of non-pecuniary or injunctive relief;
4.19 Fee disputes
any Claim or Defence Costs directly or indirectly caused by or
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arising out of any dispute involving the Insured’s fee, charges,
personal profit or other advantage to which the Insured is not
legally entitled;
4.20 Asbestos
any Claim or Defence Costs directly or indirectly caused by or
arising
out
of
the
manufacture,
mining,
processing,
distribution, testing, remediation, removal, storage, disposal,
sale, use of or exposure to asbestos or materials or products
containing asbestos whether or not there is another cause of
loss which may have contributed concurrently or in any
sequence to such Claim or Defence Costs;
4.21 Silica
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any Claim or Defence Costs directly or indirectly caused by or
arising out of the existence, storage, handling, transporting,
disposal, manufacture, selling or distributing of any silica or
silica dust;
4.22 Elective Cosmetic Surgery
any Claim or Defence Costs directly or indirectly caused by or
arising out of the performance of elective cosmetic plastic
surgery or hair transplants.
Conditions
5.1
Licensing of all Professional Practitioners
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It is a condition precedent to the Insured’s right to be
indemnified under this Policy that the Insured keep accurate
records of and ensure that throughout the Policy Period all
professional practitioners hold valid licences to practise in their
respective specialisations issued by the relevant lawfully
established and recognised licensing authority within the
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territories specified in Item 5.2 of the Schedule.
This
Condition,
shall
apply
to
all
medical
and
dental
practitioners, private consultants and those with visiting rights
under the Insured’s supervision or who otherwise work or
provide services on or out of the Insured’s premises.
5.2
Jurisdiction and Applicable Law
This Policy is governed by and should be construed in
accordance with the law of the country specified in Item 8 of the
Schedule.
In the event of any dispute between the Insurers and the
Insured concerning this Policy, its validity, existence or
termination or relating to the interpretation of the terms,
conditions, limitations and/or exclusions contained herein, the
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5.
parties agree to submit to the exclusive jurisdiction of any court
of competent jurisdiction within the country or state specified
in Item 9 of the Schedule and to comply with all requirements
necessary to give such court jurisdiction.
5.3
Records
The Insured shall at all times:5.3.1 maintain accurate descriptive records of all Professional
Services and equipment used in procedures. Such records
shall be made available for inspection and use by Insurers
or their appointed representatives in the investigation or
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defence of any Claim hereunder;
5.3.2 retain the records referred to in 5.3.1 above for a period
of at least ten (10) years from the date of treatment and,
in the case of a minor, for a period of at least ten (10)
years after that minor attains majority. Obstetric records
must be retained and preserved indefinitely; always
subject to any longer retention period as provided for by
applicable legislation;
5.3.3 provide Insurers or their appointed representatives with
such oral or written information, assistance, signed
require.
5.4
Disclosure
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statements, evidence or depositions as Insurers may
5.4.1
Insurers have relied upon the Proposal as the basis upon
5.4.2
It is a condition precedent to the Insured’s right to be
which they have entered in to this Policy.
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indemnified under this Policy that the Insured must
disclose to the Insurers before this Policy is entered into,
every matter which is known or ought reasonably to be
known by the Insured which a reasonable person in the
circumstances could be expected to identify as relevant
and/or material to the risk being insured.
This duty of disclosure also applies to any renewal, extension,
variation or reinstatement of the Policy.
5.4.3
In the event of unintentional non-disclosure, the
Insurers may at their absolute discretion refuse to cover
additional exposure to that which was disclosed or
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charge a reasonable additional premium or avoid the
contract.
5.4.4 In the event of intentional or fraudulent failure to comply
with the duty of disclosure; or intentional or fraudulent
misrepresentation to the Insurers, the Insurers may avoid
the contract.
5.4.5 It is a condition precedent to the right of the Insured to be
indemnified under this Policy that, during the Policy
Period, the Insured gives notice in writing as soon as
practicable to the party named in Item 11 of the Schedule
of any alteration which materially affects the risk. The
Insurers are entitled to refuse to cover the additional
exposure or cancel the contract in accordance with the
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cancellation provisions of this Policy.
5.5
Notice
5.5.1 It is a condition precedent to the right of the Insured to be
indemnified under this Policy that notice of any Claim as well as
any circumstances or incidents which might reasonably be
expected to give rise to a Claim shall be given to Insurers
immediately upon the Insured becoming aware thereof. Notice
of such Claim or circumstances or incident shall be in writing
and shall be delivered by fax, email or by post to the address
specified in item 11 of the Schedule.
the
Insured
provides
Insurers
with
notice
of
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5.5.2 If
circumstances or incidents as mentioned above during the
Policy Period which are accepted by the Insurers, any Claim
subsequently made which arises from those circumstances shall
not be excluded from the cover granted by this Policy solely
because the Claim was made after expiry of the Policy Period.
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5.5.3 The simple noting of an incident in an incident book
without other grounds for believing a Claim may be made shall
not constitute a notifiable circumstance or incident.
5.6
Control of Claims
Insurers shall be entitled but not obligated to take control of
the defence of any Claim in the Insured’s name and shall have
full discretion in the conduct of any negotiations or proceedings
in the settlement of any Claim. The Insured shall assist the
Insurers and co-operate fully with them in the investigation
and/or defence of any Claim and the prosecution of any
subrogation or recovery action without charge to Insurers.
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5.7
Consent of Insurers
The Insured shall not admit liability or enter any arrangement or
make any offer, payment or promise or incur any Defence Costs
without the prior written consent of Insurers.
5.8
Consent of the Insured
Insurers will not settle any Claim without the consent of the
Insured provided that:-
5.8.1 if the Insured refuses to consent to any settlement
recommended by Insurers or their legal representatives
then Insurers' liability shall not exceed the total amount
for which the Claim could have been settled plus the
Defence Costs incurred with their consent up to the date
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of the refusal;
5.8.2 the Insured agrees to indemnify Insurers for all sums
including Defence Costs which Insurers are liable to pay
after the date of refusal.
5.9
Relinquishment
Insurers may at any time pay to the Insured in connection with
any Claim the amount of the Limit of Liability remaining under
this Policy or any lesser amount for which such Claim can be
settled less any sums already paid and less any associated
Defence Costs already paid. Upon such payment being made,
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the Insurers shall relinquish the conduct and control of and be
under no further liability in connection with such Claim or
associated Defence Costs incurred after the date of such
relinquishment.
5.10 Subrogation
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Insurers shall be entitled at any stage to bring an action for
their own benefit seeking indemnity, damages or otherwise
against any third party in the name of the Insured to the extent
of any sums paid or payable by them or in pursuance of their
interests in any Claim.
Insurers’ expenses in the recovery shall be applied prior to the
application of the recovery to the Claim.
5.11 Fraudulent Claims
If the Insured shall make any request for payment from Insurers
knowing the same to be false or fraudulent as regards amount
or otherwise, this Policy shall become void ab initio, all
premiums paid shall be forfeited and all payments to the
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Insured under the Policy shall be returned.
5.12 Cancellation
Insurers may cancel this Policy by giving written notice to the
Insured at the address stated in Item 1 of the Schedule of thirty
(30) calendar days before the effective date of cancellation.
Premium will be refunded to the Insured on a pro rata basis.
5.13 Contract Integrity
The Policy, Declarations, extensions and endorsements shall be
read as one document and the information given to the Insurers
when the contract was concluded is incorporated in and forms
the basis of this Policy. No alteration to the Policy shall be
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binding unless it is evidenced by endorsement duly signed by or
on behalf of the Insurers. However an arbitration clause, if
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included in the Policy, is a separate agreement to the Policy.
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Additional
Clauses and
Extensions
6.1
Insurance of Independent Professional Practitioners
It is a condition precedent to the Insured’s right to be
indemnified under this Policy that the Insured keep accurate
records of and ensure that throughout the Policy Period all
Independent Professional Practitioners are members of a
medical
defence
organisation
or
similar
scheme,
club,
association or arrangement from which such practitioners
benefit from insurance or indemnity or have the benefit of
another form of compensation or payment or insurance in
6.2
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respect of their activities and potential exposure to Claims.
Duty to Defend Extension
This Extension is only operative if so stated in the Schedule.
6.2.1 Condition 5.9, Relinquishment, is hereby deleted and
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Condition 5.6, Control of Claims is amended by deleting
the words “but not obligated” and substituting the
following words: “and shall have a duty”.
6.2.2 The Insurers’ duty to defend ceases when the total paid
by them in settlement of the Claim plus any associated
Defence Costs equals or exceeds the Limit of Liability
available under the Policy in respect of such Claim.
6.2.3 This Extension only applies where the third party claimant
makes a written allegation of a Claim in which the primary
allegation is properly pleaded and is covered by this
Policy.
6.3
Good Samaritan Acts
This Extension is operative unless expressly stated otherwise in
the Policy.
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6.
A new Insuring Clause is added as follows:
1.1.2 the performance of Good Samaritan Acts
A new Definition is added as follows:
2.12 Good Samaritan Acts
treatment administered at the scene of a medical emergency,
accident or disaster by the Insured when present either by
chance or in response to an emergency call following a disaster.
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6.4
AIDS and Hepatitis Non-A Sub-Limit of Liability
The Insurers shall not be liable under this Policy to pay more
than the relevant amount stated in the Schedule in the
aggregate in respect of this Policy Period in respect of any and
all Claims arising directly or indirectly from or in any way
connected with:
6.4.1 the virus known variously as human immunodeficiency
virus (HIV), Human T-Cell Lymphotropic Virus Type III,
(HTLV III) or Lymphadenopathy Associated Virus (LAV) or
any of its mutants, derivatives or variations or the
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Acquired Immune Deficiency Syndrome (AIDS) or AIDS
related complex (ARC) or any syndrome or condition of a
similar kind howsoever it may be named,
6.4.2 Hepatitis Non A type viruses.
Unless otherwise specified in the Policy, the above limit shall be
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inclusive of all Defence Costs.
If no amount is stated in the Schedule then no sub-limit will
apply.
Provided always that this extension will not operate to increase
any aggregate Limit of Liability already stated in the Policy.
6.5
Special Conditions for Quebec
Only applicable where the address of the first Insured named in
item 1 of the Schedule is stated to be in Quebec. These
conditions override any other provision of the Policy to the
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extent it is inconsistent.
Designation of Insurance Cover
This is a non-compulsory liability insurance for the sole benefit
of the parties named or referred to herein as Insureds. No other
party is a beneficiary of the Policy or accrues any rights under it
other than as expressly provided for by law.
Policy Proceeds
The proceeds of the Policy shall be applied exclusively to the
payment of third parties injured.
Cut-Through of Third Party
An injured third party may bring an action directly against the
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Insured or against the Insurers or against both. The option
chosen in this respect by the third party injured does not
deprive him of his other recourses.
Offset Rights
The Insurers may set up against the injured third party any
grounds they could have invoked against the Insured at the
time of the loss, but not grounds pertaining to facts that
occurred after the loss; the Insurers have a right of action
against the Insured in respect of facts that occurred after the
loss.
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Duty to Defend and Costs in Addition
Extension 6.2, Duty to Defend, is applicable. Sub-paragraph
6.2.2 thereof is amended by deleting the words “plus any
associated Defence Costs”.
Limit of Liability clause 3 is amended to read as follows.
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The Insurers’ total liability during the Policy Period in respect of
all Compensatory Damages shall not exceed the Limit of
Liability specified in Item 6 of the Schedule, disregarding
Defence Costs. Insurers shall not be liable to pay any Defence
Costs after the Limit of Liability has been exhausted by payment
of or agreement to pay Compensatory Damages.
Insurers will also pay Defence Costs in addition to the Limit of
Liability, provided that if the total amount required to dispose
of any Claim exceeds the Limit of Liability available under this
Policy in respect of such Claim then the Insurers will at the
maximum pay such proportion of the total Defence Costs as the
amount of the indemnity available under this Policy bears to the
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total amount required to dispose of the Claim.
Consent Required
No transaction made without the consent of the Insurers may be
set up against them.
Excess
The Excess stated in the Schedule is exclusive of Defence Costs.
6.6
Extended Reporting Period Extension
This extension is only operative if and in the manner specified
in the Schedule.
6.6.1 Option Clause
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The Insurers agree to grant the Insured the right to exercise an
option which, subject to the fulfilment of the conditions stated
below, will become automatic upon exercise of the same by the
Insured.
Conditions precedent to the exercise of the option:
i)
The option may only be exercised in the event of Insurers
cancelling or refusing to renew this Policy for any reason
other than due to non- or late payment of premium or
fraud. The quotation by Insurers of a different premium or
Excess or Limit of Liability or of changes in Policy
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language for renewal shall not constitute a refusal to
renew by the Insurers.
ii)
The option must be exercised by the Insured in writing to
the Insurers within 5 working days of the effective date of
cancellation by the Insurers or, in the event of refusal by
them to renew, of the date the Policy would have been
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renewed on.
iii)
An additional premium shall be paid to the Insurers as
stated below no later than the latest date for exercising
the option.
6.6.2 Extension Clause
Upon exercise of the option by the Insured, the following
changes to the Policy terms and conditions will be effective.
i)
An extended reporting period commencing with the
effective date of termination of this Policy and ending on
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the date specified below shall be granted during which the
ii)
iii)
Insured may notify any act, error, omission, circumstances
or event in terms of the condition 5.5.2 above.
The extended reporting period may not be cancelled or
curtailed by the Insurers.
At the commencement of the extended reporting period
the entire additional premium shall be deemed earned
and in the event the extended reporting period is
terminated for any reason prior to its natural expiration,
Insurers will not be liable to return any additional
premium paid.
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iv)
The
extended
automatically
reporting
upon
the
period
will
terminate
Insured obtaining insurance
similar in scope and cover to this Policy.
v)
The act, error, omission, circumstances or event notified
to Insurers must be such as occurred or were alleged to
occur subsequent to the applicable Retroactive Date and
prior to the effective date of cancellation by the Insurers
or, in the event of refusal by them to renew, the date the
Policy would have been renewed on.
Any act, error, omission, circumstances or event notified
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vi)
by the Insured during the extended reporting period shall
be treated as if they were first notified on the last day
preceding the effective date of cancellation by the
Insurers or, in the event of refusal by them to renew, the
date the Policy would have been renewed on;
This extended reporting period shall not have the effect of
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vii)
increasing the Limit of Liability applicable as on the last
day preceding the cancellation or non-renewal.
Unless otherwise specified in the Schedule, the additional
premium due in respect of this extension shall be 50% of the
premium stated in item 4 of the Schedule.
Unless otherwise specified in the Schedule, the expiry date of
the extended reporting period shall be 180 days after the
effective date of cancellation by the Insurers or, in the event of
refusal by them to renew, after the date the Policy would have
been renewed on.
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6.7
Round the Clock Reinstatement Clause
This Extension is only applicable if so stated in the Schedule.
This Policy being subject to an aggregate Limit of Liability as
stated in item 6 of the Schedule, each Claim made will reduce
the amount of indemnity available to pay future Claims. It is
hereby agreed that upon the happening of a Claim or Claims
which exhaust the Limit of Liability available to the Insured
under this Policy and all excess layer policies combined, the
Limit of Liability under this Policy will be reinstated in respect of
subsequent unconnected Claims, that is to say Claims which are
not part of a series of Claims arising out of or which are
attributable to the same single originating cause or source as
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any Claim arising prior to the date of reinstatement and which
are not otherwise causally connected with any such Claim.
The maximum total amount reinstated by the operation of this
clause shall be the amount of the Limit of Liability stated in the
Schedule.
This clause shall only apply to Insuring Clauses and Extensions
in respect of which the Insured has advised Insurers in writing
in advance that excess layers will apply and the limits of such
excess layers and it shall be a condition precedent to the
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operation of this clause that such excess layers are maintained
in force for at least the limits advised throughout the Policy
Period other than where the limits are reduced or exhausted by
payment of Claims during the Policy Period.
6.8
Loss of Documents Extension
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This Extension is only applicable if so stated in the Schedule.
Insuring Clause 1.1.1 of this Policy is amended to also
indemnify the Insured for sums which the Insured shall become
legally liable to pay as Compensatory Damages resulting from
any Claims for loss of any of the following documents
1.
2.
patient medical records
documents (other than documents which have monetary
value) expressly entrusted to the Insured by any person,
including deeds, wills, plans, letters, certificates and the
like.
The Insurers will also indemnify the Insured for the costs
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incurred by the Insured with the Insurers’ prior written approval
in restoring or replacing any of the documents referred to in 1
and 2 above or
3.
the Insured’s own administrative and accounting records
(other than patient medical records)
which have been lost.
In this Extension the terms ‘loss’ and ‘lost’ shall refer to the
irrevocable loss, damage , theft or destruction of documents
which after diligent search by the Insured cannot be found.
Documents having monetary value shall be understood to mean
tickets,
bills,
bank-notes,
negotiable
instruments,
bearer
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bonds, travellers’ cheques and the like.
The Insurers shall not be liable for any Claim or Defence Costs
arising from
i)
libel or slander,
ii))
any infringement of the Freedom of Information and
Protection of Privacy Act or similar legislation in any
country, State or Territory, including any regulations or
orders derivative from such laws,
breach of professional confidentiality.
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iii)
Sub-Limit of Liability
The Insurers shall not be liable under this Extension to pay
more than the relevant amount stated in the Schedule in the
aggregate in respect of this Policy Period in respect of any and
all Claims arising directly or indirectly from or in any way
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connected with loss of documents referred to in 1, 2 or 3
above.
Unless otherwise specified in the Policy, the above limit shall be
inclusive of all Defence Costs.
The Limit of Liability of the Insurers under this Extension shall
be excess of the amount stated in Item 7 the Schedule as the
Excess in respect of each and every Claim.
Provided always that this Extension will not operate to increase
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any aggregate Limit of Liability already stated in the Policy.
6.9
Legal Expenses Extension
This Extension is only applicable if so stated in the Schedule.
Definition
For the purposes of this Extension only, the term Insured shall
mean the party named as such in the Schedule and no other.
Insuring Clauses
The Insurers will indemnify the Insured for reasonable fees,
charges, expenses and disbursements incurred by the Insured’s
solicitor or counsel with the Insurers’ prior written consent in
respect of any of the following proceedings and arising out of
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the
Insured’s
business
specified
in
the
Proposal.
Such
proceedings must be commenced and advised to Insurers in
writing within the Policy Period and be brought within the
jurisdiction specified in Item 5.1 of the Schedule. The cover will
also apply to anticipated proceedings or circumstances which
the Insurers accept are likely to give rise to proceedings,
advised to Insurers during the Policy Period, which are
commenced after the expiry date of this Policy.
1.
Peer Review Inappropriate Practices
Defending a civil or criminal action or responding to or
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appearing at an inquiry in connection with an allegation of
inappropriate or unacceptable practice by the Insured or a
person (including a practitioner) who is an officer of the Insured
on the grounds of knowingly, recklessly or negligently causing
or permitting a practitioner employed by the Insured to engage
in conduct that constitutes inappropriate practice by the
practitioner.
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This insuring clause shall only apply where inappropriate and
unacceptable practice may be established by peer review
procedures set out in any applicable statute or regulation
governing the Insured’s profession whereby a practitioner may
be deemed to have engaged in inappropriate or unacceptable
practice if the practitioner’s conduct, in connection with
rendering or initiating services, is such that a committee of his
or her peers could reasonably conclude that:
1.1
in the case of a medical practitioner the conduct would be
unacceptable to the general body of the members of the
specialisation (general medicine is taken to be a
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1.2
specialisation) or
in the case of a dental practitioner, optometrist,
chiropractor, physiotherapist or podiatrist the conduct
would be unacceptable to the general body of the
members of the profession
in which the practitioner was practising when he or she
rendered or initiated services.
2.
Court or Tribunal Prosecution
Defending a prosecution or responding to an enquiry brought in
a jurisdiction to which this Policy applies or any medical board,
dental
board,
tribunal
or
complaints
body
within
such
jurisdiction which arises out of the Insured’s business specified
in the Proposal.
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3.
Health Care Benefits Providers
Defending a suit or responding to an enquiry brought by an
organisation whose purpose is the provision of medical benefits
and duly registered as such in accordance with the laws and
regulations in the territory specified in Item 5.2 of the Schedule.
4.
Employment Disputes
(a)
arising in consequence of an Employment Related Dispute
Pursuing or defending an action
5.
relating to a contract or proposed contract of employment
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(b)
as defined in this Policy or
with the Insured.
Trade Practices
Defending an action alleging breach of any trade practices
legislation.
Defamation
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6.
Pursuing or defending a Claim for defamation, however, this
Extension shall not apply to defence of a Claim for libel or
slander when the Extension – Libel and Slander is operative.
7.
Appeals
Pursuing or defending an appeal from a judgement in
proceedings of the kind referred to in any of paragraphs 1 to 6
above but only if in the opinion of senior counsel to be
appointed by the Insurers such appeal is likely to succeed.
Tax Audit
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The Insurers will also indemnify the Insured for reasonable
accounting fees, legal fees and related expenses incurred with
the prior written approval of the Insurers in the event of the
Internal Revenue Service or similar state body carrying out an
in-depth audit of the Insured during the Policy Period which
does not result in criminal proceedings being taken against the
Insured.
Exclusions
This Extension is subject to all the Exclusions of the Policy
insofar as they can apply and not specifically varied by this
Extension. Furthermore, Insurers shall not be liable under this
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Extension for any losses arising from or related to or in respect
of
1.
The dismissal of any present, former or prospective
principal, partner, director, employee or volunteer of the
Insured named in the Schedule, including part time
employees, students, locums, agency nurses and other
temporary employees of the Insured within 60 days of the
inception date of this Policy,
2.
Any action by or against the Insured against or by any
3.
Any proceedings which are solicited by the Insured or
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existing or former partner of the Insured,
which result from collusion by the Insured with another or
others in the instigation of proceedings,
4.
Infringement of intellectual property,
5.
Any Claim which falls within the terms of Insuring Clause
6.
Breach of duty of any director or officer of the Insured in
1.1 or 1.2 of this Policy,
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their capacity as such which is not related directly to the
7.
8.
9.
Insured’s business as stated in the Proposal,
The Insured’s out-of-pocket expenses,
Legal fees and related expenses incurred by someone
other than the Insured which the Insured is ordered to pay
under an order for costs,
Any compensation, damages or multiple damages of any
kind.
Sub-Limit of Liability
The Insurers shall not be liable under this Policy to pay more
than the relevant amount stated in the Schedule in the
aggregate in respect of this Policy Period in respect of any and
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all Claims arising directly or indirectly from or in any way
connected with legal expenses under insuring agreements 1 to
7 of this Extension or Tax Audit cover.
Unless otherwise specified in the Policy, the above limit shall be
inclusive of all Defence Costs.
The Limit of Liability of the Insurers shall be excess of the
amount stated in Item 7 the Schedule as the Excess in respect
of each and every Claim.
Provided always that this Extension will not operate to increase
any aggregate Limit of Liability already stated in the Policy.
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Recoveries
The Insurers will have the benefit of any order or agreement for
costs made in favour of the Insured or recoverable from any
other source and if payment has already been made by the
Insurers then the Insured must reimburse the Insurers up to the
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amount they have paid.
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Endorsement attaching to and forming part of industrial
property Policy number
Schedule of
[Default: None unless advised]
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Practitioners
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Individual
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Endorsement attaching to and forming part of industrial
property Policy number
Suit Clause
(Canada)
(Action against
Insurer)
In any action to enforce the obligations of the Underwriters liable
hereunder they can be designated or named as "Nicholas Smith in
his quality as Attorney In Fact in Canada, for Lloyd's Underwriters,
Members of Lloyd's, London, England" and such designation shall
be binding on the Underwriters liable hereunder as if they had
each been individually named as Defendant.
Service of such
proceedings may validly be made upon Nicholas Smith., whose
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Service of
address for such service is 1155, rue Metcalfe, Suite 1540,
Montreal, Quebec, H3B 2V6.
09/05/01
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N.M.A. 1970b
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Endorsement attaching to and forming part of industrial
property Policy number
Incident
Exclusion
Clause
(For use with all Public Liability Policies except Personal,
Farmers’ and Storekeepers’)
It is agreed that this Policy does not apply:
(a)
Liability
to liability imposed by or arising from any nuclear
liability act, law or statute, or any law amendatory thereof;
Direct (Broad)
nor
Canada
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Nuclear
(b)
to bodily injury or property damage with respect to
which an Insured under this policy is also insured under a
contract of nuclear energy liability insurance (whether the
Insured is unnamed in such contract and whether or not it is
legally enforceable by the Insured) issued by the Nuclear
Insurance Association of Canada or any other insurer or
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group or pool of insurers or would be an Insured under any
such policy but for its termination upon exhaustion of its
limit of liability; nor
(c)
to bodily injury or property damage resulting
directly or indirectly from the nuclear energy hazard arising
from:
(i)
the ownership, maintenance, operation or use of a
nuclear facility by or on behalf of an Insured;
(ii) the furnishing by an Insured of services, materials,
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parts or equipment in connection with the planning,
construction, maintenance, operation or use of any
nuclear facility; and
(iii) the possession, consumption, use, handling,
disposal or transportation of fissionable substances, or
of other radioactive material (except radioactive
isotopes, away from a nuclear facility, which have
reached the final stage of fabrication so as to be usable
for any scientific, medical, agricultural, commercial or
industrial purpose) used, distributed, handled or sold by
an Insured.
As used in this policy:
1. The term ‘‘nuclear energy hazard’’ means the radioactive,
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toxic, explosive, or other hazardous properties of
radioactive material;
2. The term ‘‘radioactive material’’ means uranium, thorium,
plutonium, neptunium, their respective derivatives and
compounds, radioactive isotopes of other elements and any
other substances which may be designated by or pursuant
to any law, act or statute, or law amendatory thereof as
being prescribed substances capable of releasing atomic
energy, or as being requisite for the production, use or
application of atomic energy;
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3. The term ‘‘nuclear facility’’ means:
(a) any apparatus designed or used to sustain nuclear
fission in a self-supporting chain reaction or to contain
a critical mass of plutonium, thorium and uranium or
any one or more of them;
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(b) any equipment or device designed or used for (i)
separating the isotopes of plutonium, thorium and
uranium or any one or more of them, (ii) processing or
utilising spent fuel, or (iii) handling, processing or
packaging waste;
(c) any equipment or device used for the processing,
fabricating or alloying of plutonium, thorium or uranium
enriched in the isotope uranium 233 or in the isotope
uranium 235, or any one or more of them if at any time
the total amount of such material in the custody of the
Insured at the premises where such equipment or device
is located consists of or contains more than 25 grams of
plutonium or uranium 233 or any combination thereof,
or more than 250 grams of uranium 235;
(d) any structure, basin, excavation, premises or place
prepared or used for the storage or disposal of waste
radioactive material;
and includes the site on which any of the foregoing is
located, together with all operations conducted thereon and
all premises used for such operations.
4. The term ‘‘fissionable substance’’ means any prescribed
substance that is, or from which can be obtained, a
substance capable of releasing atomic energy by nuclear
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fission.
5. With respect to property, loss of use of such property
shall be deemed to be property damage.
It is understood and agreed that, except as specifically provided
in the foregoing to the contrary, this Clause is subject to the
terms, exclusions, conditions and limitations of the Policy to
which it is attached.
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NMA1978a
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01/4/96
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