Newbery v AA Insurance Limited - [2015] NZHC 2457

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2015-409-332 [2015] NZHC 2457

BETWEEN
BRIAN NEWBERY

Plaintiff

AND

AA INSURANCE LIMITED Defendant

Hearing: 21-23 September 2015

Appearances:

D A Webb and R A Kay for the Plaintiff
C A Brick and A J McNaughtan for the Defendant

Judgment:

8 October 2015

JUDGMENT OF NATION J

[1] Mr Newbery was a successful businessman who is now retired. He is also a vintage car enthusiast. Associated with that interest, he collected a number of Lladro porcelain pieces depicting vintage cars and figures in a variety of scenes. His wife matched his interest by also collecting Lladro figurines. A total of some 30 Lladro items were damaged in the Christchurch earthquake of 22 February 2011. The undisputed replacement cost of these items is $210,065.

[2] I have to decide whether these Lladro items can be classified as sculptures and/or ornaments in terms of Mr Newbery’s policy with AA Insurance Limited (AA Insurance).

The nature of Lladro

[3] Lladro is made by the Lladro company in Spain, a business started by three
Lladró brothers in 1951. A Lladro publication from 1981 refers to sculptors making a sketch and then discussing with painters any problems of colour. The sculptor then

NEWBERY v AA INSURANCE LTD [2015] NZHC 2457 [8 October 2015]

makes a clay model. Once every detail of the piece has been decided upon, a master model is made slightly larger than the definitive size to allow for shrinkage in the kiln. The model is then cut up into different pieces so that it may be recreated later from moulds. A special paste is injected into a moistened mould and left to dry. Once each piece has reached a workable consistency, the pieces are recomposed in the configuration of the original model, polished by hand so as to remove any signs of joins and to reproduce the original design. The piece is then marked with the Lladro mark. The reconstructed pieces are painted consistent with the paint on the original model, varnished and fired in a kiln. It is then coated with a porcelain solution, potentially repainted if required and then re-fired. This process can be completed a number of times before the piece is finished.

[4] The items are produced in a factory. Many people are involved in the process. In the Lladro authorised publication I referred to, there is reference to “the craftsman’s workshop”, “a whole team of specialists” involved in creating a piece, the “sculptors” who make the sketch, painters who deal with the colours, chemists who prepare the pastes, “specialists” who study the cutting up of the model and who prepare the moulds, “craftsmen” who recompose the model, “specialists” who manually polish the individual pieces taken from the moulds and “artists” who repaint the fired reconstituted model to match the paintings on the original.

[5] Lladro pieces are now so distinctive and have such a name that they are commonly referred to simply as “Lladro”. Each individual piece is, however,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Newbery v AA Insurance Limited

Details

AGLC: Newbery v AA Insurance Limited [2015] NZHC 2457
Case: [2015] NZHC 2457
Decision Date: 8 October 2015

CaseChat Overview and Summary

In Newbery v AA Insurance Limited, Mr Newbery sought to recover the replacement cost of a number of Lladro porcelain figurines damaged in the Christchurch earthquake of February 2011. Mr Newbery argued that the figurines were not “works of art” within the meaning of his insurance policy and that they were therefore fully covered by the policy. AA Insurance argued that the figurines were “works of art” and that, if that was so, the maximum liability for damage to them was limited. The primary issue for the court was whether the Lladro pieces could be classified as sculptures or ornaments in terms of Mr Newbery’s policy with AA Insurance. The court found that the figurines were both ornaments and sculptures. They were ornaments in the sense that they were owned and on display because of the value which the owner placed on the appearance and design of the item. They were sculptures because the ordinary meaning of sculpture, as with ornament, had to be one which the owner of a single Lladro piece would accept, as well as a collector. The court therefore held that the claim was dismissed.

Orders