§ 3 Right to Sue
§ 1 General Provisions
"Cancellation" as used in insurance law usually refers to termination of a policy prior to the expiration of the policy period, while "termination" refers to the expiration of a policy by lapse of the policy period. A.S.C.A. § 22.2013. Pu`u v. Leupule, 12 A.S.R.2d 59.
Insurance statute that specifically includes certain losses but does not comprehensively define "liability insurance" does not necessarily exclude all other losses. Holland v. Haleck's Island Motors, 15 A.S.R.2d 44.
Even if the "last injurious exposure" rule were not the law in American Samoa, employers and insurers may contractually adopt this rule, which places full liability on the insurer providing coverage at the time of the most recent injury causally related to the disability. Continental Insurance Co. v. Workmen's Compensation Commission, 15 A.S.R.2d 130.
Where a contract stated that plaintiff would receive commissions on insurance premiums collected via payroll deduction, defendant was liable for such commissions on premiums collected under a subsequent payroll deduction plan until he gave timely written notice of cancellation to plaintiff as required by the contract. Mauga v. Pioneer Pacific Financial Services, Inc., 16 A.S.R.2d 16
Defendant could not unilaterally withhold a percentage of the commissions payable to plaintiff on his sales of insurance policies in order to recoup commissions defendant paid on lapsed or cancelled policies, where the contract did not so specify. Mauga v. Pioneer Pacific Financial Services, Inc., 16 A.S.R.2d 16
It is a well-settled rule of law that an ordinary bailee is not an insurer of bailed property absent statute or express agreement but is liable only for loss resulting from his negligence in caring for and protecting the bailed property. Holland v. Haleck's Island Motors, 18 A.S.R.2d 2.
A bailee for mutual purposes is under no legal obligation to insure. Holland v. Haleck's Island Motors, 18 A.S.R.2d 2.
Under the terms of a "c.i.f." contract, the seller pays for shipping costs and also for an insurance policy that will protect the buyer against damage during shipping; the title and the risk of loss or damage to the goods shift to the buyer upon delivery of the goods to the carrier and of the bill of lading and the insurance certificate to the buyer. U.C.C. § 2-401. Ghiselli Bros. v. Ryan Inc., 19 A.S.R.2d 128.
Under a "c.i.f." contract, the buyer's remedy for goods damaged in transit is to file a claim under the insurance policy purchased by the seller and surrendered to the buyer, not to reject the goods as "non-conforming." Ghiselli Bros. v. Ryan Inc., 19 A.S.R.2d 128.
Words used in an exclusionary clause in an insurance policy are to be given the meaning that common speech imports. Thompson v. National Pacific Insurance, 20 A.S.R.2d 85.
Because a plaintiff bore no risk of loss under a c.i.f. contract and is not permitted to recover twice for the same injury, a defendant was entitled to remittitur in the amount of a cash settlement which a plaintiff received from an insurance company. Ghiselli Bros., Inc. v. Ryan, Inc., 22 A.S.R.2d 57.
When a party disputed an assertion that a written insurance contract was the product of mutual mistake and so did not reflect the actual terms of the policy, a factual dispute precluding summary judgment existed. American Samoa Power Authority v. National Pacific Insurance Co., 23 A.S.R.2d 100.
Under the collateral source rule, which applies to torts in admiralty and virtually all other tort cases, an injured party's compensation from a source independent of the tortfeasor is not deducted from damages otherwise collectable from the tortfeasor. Interocean Ships, Inc. v. Samoan Gases, 24 A.S.R.2d 108.
An insurance policy is a contract and the same rules of construction applicable to other contracts are applicable to insurance policies. If an insurance contract is unambiguous, the vast majority of U.S. jurisdictions require that a court follow the prescriptions of the policy as written, and need look no further in resolving any disputes. Asifoa v. National Pacific Insurance, 26 A.S.R.2d 23.
Once an insurance policy is found to be ambiguous, further inquiry is generally allowed by the court. Asifoa v. National Pacific Insurance, 26 A.S.R.2d 23.
Endorsements are forms added to basic policies to address a situation's particular coverage needs. Endorsements become part of an insurance contract and must be construed with it. Asifoa v. National Pacific Insurance, 26 A.S.R.2d 23.
If there is a conflict between the terms of the endorsement and those in the body of the main policy, then the endorsement prevails, particularly when it favors the insured. Asifoa v. National Pacific Insurance, 26 A.S.R.2d 23.
An insurance policy is to be read from the viewpoint of a layperson. Asifoa v. National Pacific Insurance Co., 26 A.S.R.2d 99.
When a conflict exists between the endorsement and the body of a policy, the conflict is resolved in favor of the endorsement. Asifoa v. National Pacific Insurance Co., 26 A.S.R.2d 99.
A court cannot inquire into the intent of either party unless the policy is ambiguous. Asifoa v. National Pacific Insurance Co., 26 A.S.R.2d 99.
An insurance policy is a contract, and the same rules of construction applicable to other contracts are applicable to insurance policies. Plaza Department Store v. Duchnak, 26 A.S.R.2d 106.
A court may inquire into the circumstances surrounding an insurance policy if that policy is found to be ambiguous. Plaza Department Store v. Duchnak, 26 A.S.R.2d 106.
Reformation involves rewriting a contract in order to reflect the actual intent of both parties, and an insurance contract may be reformed after a loss has occurred. However, reformation is not appropriate to enforce terms to which the defendant never assented, but is used only to correct a mistake in writing to conform to the actual agreement of the parties. Plaza Department Store v. Duchnak, 26 A.S.R.2d 106.
Reformation is an extraordinary remedy, and courts have in general exercised it with caution. However, courts have reformed insurance contracts in regard to the amount of coverage provided. Plaza Department Store v. Duchnak, 26 A.S.R.2d 106.
There exists at common law a tort for bad faith delay in paying legitimate insurance claims. Paisano’s Corp. v. National Pac. Ins., 30 A.S.R.2d 139.
The tort of bad faith delay in paying legitimate insurance claims is not preempted by A.S.C.A. § 29.1577 because the statute penalizing delay in paying insurance claims does not rest upon a showing of bad faith. Paisano’s Corp. v. National Pac. Ins., 30 A.S.R.2d 139.
Contracts of insurance are, as a rule, construed in accordance with general principles of contractual construction. ASPA v. NPI, 31 A.S.R.2d 201.
Terms in an insurance contract are taken in their plain, ordinary and popular sense. ASPA v. NPI, 31 A.S.R.2d 201.
When the language of an insurance policy is plain and unambiguous, the court must refrain from application of rules of construction in order to find coverage for a risk of loss not intended or contemplated within the contract. ASPA v. NPI, 31 A.S.R.2d 201.
If the language of an insurance contract is plainly ambiguous on the issue of coverage, the court can consider parole evidence. ASPA v. NPI, 31 A.S.R.2d 201.
The proof to reform a policy on the ground of mutual mistake must be more then a mere preponderance of the evidence. At the same time, the mistake warranting reformation must be harbored by both parties, and not just one, and must be proven by more then a mere preponderance of evidence. ASPA v. NPI, 31 A.S.R.2d 201.
§ 2 Automobile Insurance
SEE TORTS § 8(3) – COMPULSORY INSURANCE ACT
Statute requiring liability insurance for taxis is for protection of public and should be liberally construed. R.C.A.S. 25.20. Tung v. Ah Sam, 4 A.S.R. 764.
Ambiguous clause in motor vehicle liability must be construed in favor of insured. Tung v. Ah Sam, 4 A.S.R. 764.
Compulsory liability insurance statute defines “accident” to include battery when victim did not invite or provoke aggression and owner of vehicle did not consent to nor authorize assault. R.C.A.S. 25.2003(b)3. Tung v. Ah Sam, 4 A.S.R. 764.
Statute requiring the owner of a vehicle to purchase and maintain liability insurance for losses inflicted by any person using his vehicle, and related statutes forbidding the operation of uninsured vehicles on the public highway and giving an injured person the right to bring direct action against the insurer, were intended to ensure recovery in tort for victims injured by drivers who could not afford to pay damages. A.S.C.A. §§ 22.1001, 22.2002-03. Foma'i v. Samana, 4 A.S.R.2d 102.
Rental company that allowed its automobile to be operated on the highway without insurance required by law was liable for damages suffered by person injured by negligent driver of company's automobile, up to the amount that would have been covered by insurance if the rental company had not breached its statutory duty to provide insurance. A.S.C.A. §§ 22.1001, 22.2002-03. Foma'i v. Samana, 4 A.S.R.2d 102.
Licensing of a car requires proof of liability insurance, and only licensed cars may be driven on public highways, so that use of public highways is effectively conditioned on maintenance of insurance. A.S.C.A. §§ 22.1001, 22.1002. Pu`u v. Lepule, 8 A.S.R.2d 68.
Legislature designed the compulsory insurance statute to facilitate compensation of, and afford a realistic remedy for, victims of negligence. A.S.C.A. § 22.2001 et seq. Pu`u v. Lepule, 8 A.S.R.2d 68.
"Cancellation" of an insurance policy generally refers to conclusion of a policy prior to the expiration of the policy period, while "termination" refers to expiration of the policy by lapse of the policy period. A.S.C.A. § 22.2013. Pu`u v. Lepule, 8 A.S.R.2d 68.As adequate safeguards exist to inform the Director of Administrative Services of the natural "termination" of insurance policies by expiration of the policy period, the legislature did not intend the statute requiring an insurer to notify the Director at least ten days prior to "cancellation" of a policy to apply to "terminations." A.S.C.A. § 22.2013. Pu`u v. Lepule, 8 A.S.R.2d 68.
Owner's implied permission to use his vehicle, which extends compulsory liability insurance coverage to a non-owner driver, may be inferred from a course of conduct or relationship between the vehicle owner and driver in which there is mutual acquiescence or lack of objection under circumstances signifying consent. A.S.C.A. § 22.2003(2). Maulupe v. American International Underwriters, 12 A.S.R.2d 1.
Evidence must show owner's permission, express or implied, in order for non-owner driver to be covered by owner's compulsory vehicle liability insurance policy. A.S.C.A. § 22.2003(2). Maulupe v. American International Underwriters, 12 A.S.R.2d 1.
Plaintiff failed to show owner's express or implied permission to employee living on premises to use vehicle where: employee had never before driven owner's vehicles; her duties did not require driving; and she obtained vehicle key by breaking locks on home office door and key cabinet in owner's absence. Maulupe v. American International Underwriters, 12 A.S.R.2d 1.
Statute requiring insurance carrier to notify the director of administrative services of the "cancellation" of a policy did not require such notice when the policy expired because the term of coverage ran out and the policy was not renewed. A.S.C.A. § 22.2013. Pu`u v. Leupule, 12 A.S.R.2d 59.
Compulsory Insurance Act requires auto insurance omnibus clause to insure the named insured and persons using the vehicle with his express or implied permission. A.S.C.A. § 22.2001. Mauga v. National Pacific Insurance, 15 A.S.R.2d 35.
Under initial permission rule, owner of a vehicle who permits it to be used by a first person is considered to have allowed that person's permittees to use the vehicle, even if the owner tried to limit his consent to the first person. Mauga v. National Pacific Insurance, 15 A.S.R.2d 35.
Under initial permission rule, owner of a vehicle who permits it to be used by another is considered to have permitted any later use by that person short of theft or conversion, even if such use violates the scope of the use originally permitted by the owner. Mauga v. National Pacific Insurance, 15 A.S.R.2d 35.
Under strict rule, if the owner of a car expressly forbids his permittee to lend it to another, anyone driving the car in violation of such a prohibition is not covered by the omnibus insurance clause. Mauga v. National Pacific Insurance, 15 A.S.R.2d 35.
Compulsory Insurance Act limits recovery to victims who prove actionable fault on the part of a named insured or persons driving the insured vehicle with his express or implied permission. A.S.C.A. § 22.2003(2). Mauga v. National Pacific Insurance, 15 A.S.R.2d 35.
Whether a particular driver has the insured's permission and is thus insured is a matter of fact to be proven on the evidence. Mauga v. National Pacific Insurance, 15 A.S.R.2d 35.
Initial permission rule reflects a public policy of avoiding litigation of the details of factual issues concerning the terms and scope of permission granted by a named insured. Mauga v. National Pacific Insurance, 15 A.S.R.2d 35.
American Samoa statutory scheme does not reflect public policy underlying initial permission rule; instead, it extends coverage only to express or implied permittees of the named insured, and does not deem permission to exist as a matter of law for all uses short of theft or conversion. Mauga v. National Pacific Insurance, 15 A.S.R.2d 35.
Auto rental contract expressly prohibiting all drivers except the party signing the contract does not conclusively prove that other drivers are not covered by the owner's omnibus insurance clause, since the facts may show that the owner gave implied permission regardless of the contractual prohibition. Mauga v. National Pacific Insurance, 15 A.S.R.2d 35.
Damages resulting from auto accident were limited to the maximum insurance coverage under defendant's policy where the evidence showed that some pain and suffering resulted from plaintiff's delay in acting on and following up medical recommendations, and her loss of earnings resulted from an unrelated medical condition rather than from the injuries caused by the accident. To`omalatai v. Moliga, 15 A.S.R.2d 77.
Where auto insurance policy excluded coverage for damages incurred while the vehicle was operated by a person under the influence of intoxicating liquor or any drug, but continued coverage provided on behalf of "any other person or party" who proves he did not consent to the vehicle being driven by the intoxicated driver, "any other person or party" refers to third party beneficiaries rather than the insured. Thompson v. National Pacific Insurance, 16 A.S.R.2d 114.
Where auto insurance policy excluded coverage for damages incurred while the vehicle was operated by a person under the influence, but continued coverage provided on behalf of third party beneficiaries who did not consent to the vehicle being driven by the intoxicated driver, defendant insurance company was granted summary judgment against plaintiff insured who had not consented to his intoxicated brother driving the vehicle, since the exception to the exclusionary clause did not apply where the indemnity and/or insurance was provided on behalf of the insured. Thompson v. National Pacific Insurance, 16 A.S.R.2d 114.
When a vehicle's owner did not insure his car as required by law and the driver was using the car with his permission, the owner is liable to compensate the plaintiff for any losses up to the $10,000 insurance amount he had a duty to provide. A.S.C.A. § 22.2003. Vaiti v. So'oso'o, 19 A.S.R.2d 71.
The liability of an uninsured vehicle's owner is secondary to that of a principal tortfeasor who was driving with the owner's permission; while a plaintiff may collect from either defendant, the vehicle's owner has a right of indemnity and subrogation against the driver. Vaiti v. So'oso'o, 19 A.S.R.2d 71.
Compulsory vehicle insurance covers the named insured, as well as any other person who uses the insured's vehicle with his express or implied permission. A.S.C.A. § 22.2003(2). Leilua v. Ali'itaeao, 23 A.S.R.2d 97.
Inferential in nature, implied permission for a vehicle's use is usually shown by usage and practice of the parties over a sufficient period of time. Leilua v. Ali'itaeao, 23 A.S.R.2d 97.
Although weaker evidence will support a finding of implied permission to use a vehicle if the drivers are blood relatives than if they were strangers or mere acquaintances, the mere existence of a close family relationship does not of itself establish permissive use. Leilua v. Ali'itaeao, 23 A.S.R.2d 97.
Inclusion of one’s name on an automobile’s registration is not conclusive evidence of ownership of the vehicle. Pen v. Pen, 30 A.S.R.2d 119.
§ 3 Right to Sue
Territorial government which was required by law to pay for an accident victim's medical expenses, and which had paid these expenses, was an "injured person" within the meaning of a statute allowing injured person to bring direct action against the insurer of a person alleged to have caused the accident. A.S.C.A. § 22.2018. American International Underwriters v. American Samoa Government, 3 A.S.R.2d 115.
Territorial statute which required the government to provide free medical services to all citizens, and which did not require citizens who had ability to pay their own medical expenses to reimburse the government, implicitly required that government's claim for reimbursement from tortfeasor's insurer should be subordinate to victim's claim for pain and suffering. A.S.C.A. § 13.0601. American International Underwriters v. American Samoa Government, 3 A.S.R.2d 115.
Insurance company may be sued directly for the wrongful acts of its insured. A.S.C.A. § 22.2018 Sataua v. Himphill, 5 A.S.R.2d 61.
On causes of action arising in American Samoa from any policy of liability insurance, a plaintiff may take direct action against an insurer regardless of whether the policy forbids such action, whether the insured is bankrupt, or whether the plaintiff is suing for personal injury or property damages. A.S.C.A. § 29.1537. Holland v. Haleck's Island Motors, 15 A.S.R.2d 44.
Statute granting a right of direct action against an insurer even if a policy forbids such action must be liberally construed to enhance its public policy purpose of allowing direct actions on liability insurance policies. A.S.C.A. § 29.1537. Holland v. Haleck's Island Motors, 15 A.S.R.2d 44.
Statutory right of direct action applies to any policy of liability insurance. A.S.C.A. § 29.1537. Holland v. Haleck's Island Motors, 15 A.S.R.2d 44.
Plaintiff has a right of direct action against an insurance company. A.S.C.A. § 29.1537. Holland v. Haleck's Island Motors, 18 A.S.R.2d 2.
The statutory right of direct action against an insurer on a liability-insurance policy does not apply to an insurance broker, which is typically an agent of the insured and is not an insurance company. Bryant v. Southwest Marine of Samoa, Inc., 23 A.S.R.2d 148.
In regards to subrogation, an insurance company must be joined as a necessary party plaintiff only if it has compensated an insured for his entire loss and if a danger exists that a defendant will face future lawsuits from the insurance company. T.C.R.C.P. 17(a), 19. Interocean Ships, Inc. v. Samoan Gases, 24 A.S.R.2d 108.