Barbara Gayle, Justice Coordinator
A furniture manufacturer, who failed to disclose to the Insurance Company of the West Indies (ICWI) that the premises he was insuring had an unauthorised supply of electricity and that the electrical wiring was not for commercial purposes, has lost his claim for $17.7 million as a result of a fire in 2009.
After the fire, Surton Harding submitted a claim to ICWI for loss of stock and damage to the house at Pelican Parade, Kingston 11. ICWI refused to honour the claim on the basis that he breached the contract because of non-disclosure of material facts.
Harding filed a suit in October 2009.
Justice Nicole Simmons, after hearing evidence and legal submissions, ruled in favour of ICWI on its counterclaim and ordered Harding to pay the insurance company's legal costs.
The judge found, as ICWI had contended, that the premises were not properly wired for commercial purposes when Harding entered into the contract and obtained the insurance policy. It was also the judges' finding that at the time of the contract, although electricity was at the premises, it was disconnected and reconnection was not authorised by the Jamaica Public Service Company (JPS).
Harding sought a declaration from the court that a valid and enforceable contract of insurance existed between himself and ICWI in respect to the premises, its contents, and his stock in trade and equipment. The premises were being used as a dwelling house and workshop for furniture manufacturing.
He said he did not recall any question being asked on the proposal form with respect to the electrical wiring. He said he was in arrears with the JPS and admitted that a few weeks before the fire, someone from the JPS had come to disconnect the electricity supply, but he persuaded them not to do so. He denied that the premises were not wired for commercial operations.
ICWI, represented by attorneys-at-law Maurice Manning and Arlene Williams, alleged that Harding failed to disclose that the premises were not properly wired, and although two buildings were disclosed, there was a third structure on the premises. It was further alleged that the premises were being supplied with electricity without the knowledge of JPS at the time when Harding entered into the contract with ICWI.
A witness from JPS testified that Harding had a residential account with JPS and no application was ever made to change the contract to a commercial one. The witness said that between 2006 and 2009, electricity was disconnected from the premises on eight occasions and there was no legal reconnection. The balance on the account up to April 2009 was $334,943.