Applications to court help against attrition and salami tactics in claims settlement

– After a claim, insurers only have a limited amount of time to carry out their own checks.

The Cologne Higher Regional Court (OLG Köln, order of 31.01.2012, Ref. 2 W 69/11) put an accident victim in his place. The accident victim sued the liability insurer too early, who is entitled to a review period of four to six weeks. The insurer (VR) must be given sufficient time to assess and examine the claim. If VR sends its external adjuster to the policyholder, the adjuster may (also) be paid on a contingency basis – the adjuster then presents the loss as smaller than it actually is.

Strategic claims settlement is part of everyday life for insurance claims

For example, in the case of occupational disability insurance (BU), it can happen that the policyholder is allowed to travel up to more than 100 kilometres to the assessor – and then a doctor assesses in favour of the VR.

Increasingly, insurers (VR) are dragging their feet in settling claims – which, in mirror image, potentially increases VR companies’ profits. It is also a help to VR if individual insurance consultants (VB) play this game until the insured voluntarily gives up his case instead of enforcing his pension claims. Some insurance brokers try to act as alleged experts in the field of occupational disability claims settlement; unfortunately, even the isolated orders to such brokers are null and void; § 134 BGB, §§ 1 ff. RDG (BGH, judgement of 14.01.2016, ref. I ZR 107/14).

Judicial assistance after a reasonable examination period for the insurer

Insureds are well advised to seek legal assistance a few weeks after the claim if they or their VB are stuck. It is not very effective to simply accept that the BoD keeps asking for new information and medical reports. In the event of property damage (e.g. motor vehicle accident, fire, water damage), at some point you will want to start clearing up or repairing the damage – without a judicial determination of the existing damage, it is often impossible to prove anything afterwards. In the case of personal insurance (e.g. due to daily sickness allowance, occupational disability), the state of health can change at any time – therefore, a judicial preservation of evidence of the state of health is all the more urgent in terms of time. Years later, the findings of doctors are often not sufficient for a court-appointed expert to be able to determine occupational disability. Brokers who accompany claims and insurance advisors who settle claims are required to advise the policyholder in this respect in an unambiguous manner so that no evidence is lost by the policyholder or is not even sufficiently collected in the first place.

Exemption of the insurer from liability in the event of lack of cooperation

As a rule, the policyholder is not left to bear the costs of a lawsuit, as in the above case of the Higher Regional Court of Cologne. Rather, the policyholder will not be able to rely on an “expert from the other side”, i.e. from VR, but will have to commission his own expert to carry out the appraisal, provide advice and support. This is also for the sole reason that in the end the VR gets exactly what it is entitled to – of course in preparation for a lawsuit. At best, such an action for declaratory judgment or performance by VR will be preceded by a judicial evidentiary hearing as an expedited proceeding. It would be fatal if, for example, in the case of the BU pension, the plaintiff had neither submitted a pension application nor provided the necessary medical certificates. If the policyholder refuses to cooperate without justification, the VR can withhold its benefits – or they are not due at all due to the lack of an application for insurance benefits.

Aiming for the best economic solution can go as far as fraud

A real joker with a license to give legal advice recently wrote on the Internet

„Here we are currently working on a case of a businessman who, in addition to his occupational disability contract, is the recipient of a daily sickness allowance. Our aim is to keep our client in this cover for as long as possible and to apply for benefits from the occupational disability insurance only after the private daily sickness allowance insurer has paid out the benefits.. …“.

The legal adviser was obviously unaware of Section 15 of the Model Conditions for Private Sickness (Daily Allowance) Insurance (MB/KT), according to which sickness benefit ends as soon as occupational disability occurs, even if this is only established retroactively years later. The VR will demand the daily sickness allowance back after (becoming) aware of the BU (BGH, judgement of 30.06.2010, Az. IV ZR 163/09), and possibly report the policyholder together with his legal counsel for fraud. Such behavior is akin to the civil servant widow who stores the deceased spouse in the freezer so that the full civil service pension continues to be paid. In countries such as Japan or Greece, it is said to be traditionally more common for pensions to be paid for people who died years ago. The PKV can then also cancel the full tariff for the insured person due to insurance fraud, whereupon the insured person ends up in the basic tariff – which can result in six-figure losses.

Occupational disability cannot be determined by the doctor alone

In addition, as a rule, the occupational disability insurance will often only step in when the occupational disability has existed for about six months and has been medically proven to be current. The daily sickness allowance does not have to be followed by an immediate occupational disability benefit – the latter does not even have to be insured. The criminal counsel will be accused of aiding and abetting – “the punishment for the aider and abettor depends on the threat of punishment for the perpetrator”, § 27 II 1 StGB.

More often, insurance advisors said that the daily sickness allowance VR would then come up with it if BU existed – the certificate already available to the insured person would be retained, thus giving rise to the suspicion of fraud. Later, the KTG-VR demands its benefits back – under threat of criminal charges, and in the case of civil servants, disciplinary proceedings (cf. BVerwG, judgement of 05.05.1993, Az. 1 D 49.92). Strictly speaking, doctors cannot determine BU – if, among other things, they do not have any additional occupational training – they are nevertheless expected to do so, although they can hardly know what the insured person has to do at work without an occupational specialist. Thus, the IS fighter is certified BU because he is shaking too much to aim his rifle properly, not knowing that – as every professional and job recruiter at certain mosques in Berlin, Duisburg and in Rakka knows – he only needs to press a button to blow himself up. So it would be easy to send the insured person to the doctor to have him certify a BU, should it exist. However, this is precisely what the VB deliberately fails to do, often for purely economic reasons of their own – up to and including immorality by unnecessarily inflating the time involved and acting uneconomically by deliberately deferring the application for benefits for BU in favour of supposed sickness benefit claims. In this way, the policyholder often ends up being economically harmed by the advisor.

Insurance scammers can be recognized by unrealistic optimization advertising

A few legal advisors are known nationwide in relevant circles for presenting inaccurately high damages in their “damage appraisals” – or claiming incorrect facts in “legal appraisals” to the detriment of VR as well as agents and brokers in order to swindle a “rehabilitation contribution” after a claim. In appropriate cases, the BoDs point out that they are not there to provide sufficient equity capital – for example, when bankruptcy is apparent but there is up to more than one new sports car on the doorstep.

For more than 15 years (LKA NRW, OK, Lagebericht 2015), the license-free profession of “pension broker” has existed: In a network with doctors and legal advisors, millions in benefits have been illegally obtained from the Employment Agency, pension offices, pension and health insurance companies by misrepresenting one’s health. The legend of the medical history costs several thousand euros per case. For the “fudging” of property damage, victims sometimes pay more than five times the usual lawyer’s fees.

Are insurance advisors honest?

Insurance advisors are expected to help their clients receive the benefits to which they are entitled. If an insurance adviser dealing with occupational disability applications advises his client not to pursue the question of the presumed occupational disability and avoids doing anything to clarify this himself, he is at the very least acting dishonestly if he thereby helps his client to receive daily sickness benefits to which he may not be entitled. In doing so, he harms the VR and the insurance collective, because ultimately the premiums for the daily sickness allowance have to be increased. If he disregards very concrete indications and does not pursue them in depth, this can also lead to criminal liability. Later on, the contracting party, who has been put under pressure by the VR, will willingly explain how the advice given by the VB really went.

by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm

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About the author

Dr. Johannes Fiala
PhD, MBA, MM

Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
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