When addressing the protection provided by an insurance policy it is important to note that the precise detail of the cover is contained within the insurance policy document, which is a legally binding contract.  As policy wordings are not identical from company to company, covers that may go by the same policy name (e.g. Public Liability, Professional Indemnity etc.), or even share common industry expressions, may not provide exactly the same cover.  It is extremely important then, that the policy benefits, terms, conditions and exclusions are understood and considered carefully in determining the cover provided under a specific insurance policy.

For that reason, whilst this article addresses the protection provided under various insurance policies it must be understood that covers will vary from policy to policy and although the explanations outlined can be considered to apply in most standard wordings it is not to say that special wordings cannot be applied to vary the cover.  The specific policy wording must be read to obtain complete details of all terms and conditions.

It should also be understood that insurance companies have various criteria, generally known as underwriting guidelines, that they consider in order to determine whether or not they are prepared to accept a risk and if they do accept it, what terms and conditions are to apply to the cover.  Therefore, even though a certain insurance benefit may be provided for in the policy document it may be that the risk is not acceptable to the insurer and therefore cover will not be provided, or due to the nature of the risk certain amendments / endorsements to the standard cover are insisted upon prior to acceptance of the risk.  As an extreme example, a policy may contain an exclusion for participation in sport, which would obviously be of great concern if the policy were to protect a sporting organisation.

Insurers are most selective in regard to sports risks, with many companies not being prepared to provide protection.  Various factors have contributed to a much harder insurance market in recent times, with the trend of increasing litigation playing a part.  Risks that have a history of poor underwriting results, or are seen as having high potential for adverse claims results, have become very difficult to place in the insurance market.  Generally speaking, those sports that have a higher likelihood of injury e.g. contact sports (remembering that a higher likelihood of injury results in a higher likelihood of litigation), are harder to place within the insurance market.

The thrust of this investigation is specifically the issue of pregnancy in sport and the insurance policies that may respond to incidents relating to pregnancy.  The various liability policies and personal accident insurance are the classes frequently involved.  First we will look at the legal issues of breach of duty of care and discrimination, and how the various liability policies respond to those issues.

It should be recognised that claims for negligence or discrimination may be made against the sporting body or they may be made against individuals within the sport who allegedly caused or contributed to the negligence or discrimination.  Administrators, sports trainers, coaches, referees, players etc. can incur personal liability and those individuals, together with the organisation itself, need to be insured.  Similarly it should be recognised that there is potential for litigation to emanate from the unborn child allegedly injured as a result of a third parties negligence, with the mother herself also sharing that exposure.

The Public Liability insurance policy indemnifies the insured for amounts that they become legally liable to pay as compensation for personal injury and property damage caused by an occurrence in connection with the insured's premises or business.  The insurance cover relates to liability that results from negligence (breach of duty of care), but excluding breach of professional duty, which is addressed under Professional Indemnity insurance.

A policy document defines various terms in the policy and included in these definitions is personal injury and occurrence.  It is generally outlined that personal injury goes beyond bodily injury and usually includes shock, fright, mental anguish, libel and slander and wrongful eviction among others.  It is possible discrimination will also be specified but this is not always the case.  If the policy does not specify discrimination included as personal injury, it could be argued that discrimination against the individual brings about mental anguish, which is generally included under the definition of personal injury.  An occurrence is generally described as an event that the insured does not expect or intend.

Critical to determination of the cover provided by an insurance policy are the exclusions specified by the insurer in the policy.  In a public liability policy an issue pertinent to pregnancy is that liability actions by employees of the insured arising out of their employment are generally excluded.  This includes employment related practises such as discrimination.  Therefore, if an action related to pregnancy was taken against the insured, and the injured party in that action was deemed to be an employee of the insured, the public liability policy would not generally respond to provide protection to the insured.

                                                                      Continued.....