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Email to unattended mailbox is a ‘claim made’ under insurance policy (Aus)

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An Australian federal court held that an email intimating a claim against the insured under a Directors and Officers Liability Policy to a mailbox that was not attended to was nonetheless “received” by the insured for the purposes of the policy.

The claims made policy defined a ‘Claim’ as a “written notice received by a director or officer or the company… for an amount for compensation or other relief in respect of any actual or alleged wrongful act”.  A notice was sent to an email address which the director said was never checked because it was rarely used.  It was, nonetheless, an email address used by the director and was operative at the time the claim was made.  The director must have checked it in order to forward the email to the insurer subsequently and the fact that he “rarely used” the address did not mean that the claim was not “received” in the relevant period.  No act beyond receipt of the claim was necessary for the policy requirement to be met.  The email and its attachment arrived in the mailbox and a claim was made within the policy period.

Hakea Holdings (Pty) Ltd v McGrath (No 2) [2022] FCA995 (Federal Court of Australia)

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