Approval is at stake

Consultation and documentation are expressly waived! With
such or similar model forms shall make it easier for intermediaries to
to exhaust the legal possibilities. In practice
However, there are some “risks and side effects” associated with this.

An insurer has in principle
two ways to change the behavior
of his policyholder
to control:
n It may include in the conditions a
state the grounds for exclusion according to which
there should be no insurance cover,
if certain objective conditions
are given.
n He may impose a specific obligation
Define. This is generally understood to mean
a behavioral requirement whose
Non-compliance legal disadvantages
…will result in… A breach of obligation
leads according to the relevance theory of the
Federal Court of Justice (BGH) only then to the
Exemption from benefits if they are generally suitable
is to protect the legitimate interests of the
seriously jeopardize the insurer. The
Insurer must therefore prove, on the one hand,
that the policyholder has
obligation has been objectively violated, to
Second, that he did so on the basis of intent…
or negligence, and
thirdly, that its interests are thereby
are causally injured.
This provides in the pecuniary loss liability insurance
(VSH) on the
look similar at first glance. In practice
the impact, however, is not insignificant.
Occasionally there are attempts by
insurance industry, the stricter
Prerequisites for breach of obligation
by creating a subjective
Conduct of the policyholder as
“objective” reason for exclusion formulated
will. In such cases one speaks of
“veiled” duties.

Documentation as evidence of error

The documentation obligation of the insurance intermediary
is governed by section
Section 42 c (1) and Section 42 d VVG.
The contents of the consultation, i.e. the fulfilment
of the duties, are thereafter to be
documentation. The documentation
does not replace a structured
working method nor their own expertise.
In case of doubt, the documentation
the customer the best proof of error
for example, when liability-bearing
points are missing or points that need to be clarified
Risks not documented

Practice of pecuniary loss liability insurers

An examination of various sets of conditions
by the VSH special insurance broker
Ralf W. Barth (www. revealed a total of three typical
Forms of design:
n The insurance cover should
be unresponsive to any liability
“for causing damage by knowingly causing damage
Deviation from the Law.”
The insurance intermediary would have to
thus prove that the policyholder
during his consultation
deliberately dispensed with the documentation
has. Examples can be found in the General
Contractual conditions and general
Terms and conditions of the
n “Excluded are legal liability claims
(…) in cases (…) – in
which the documentation (…) does not
by presenting the relevant documents
proved to the insurer
can be.” Examples: Special
Conditions of the insurers and
Additional Conditions.
n An insurer takes a special path
in its “Special Conditions
for financial service providers”: “(…) The
Policyholder has the advice,
in particular about the
document risks (…)
and to be presented in the event of an insurance claim. At
Breach of this obligation …”

Risks of foregoing

The risk of the intermediary is therefore only
once in the fact that his insurer
does not provide VSH coverage in the event of a claim,
if he blindly filled out a sample form for
the waiver of the documentation of the
Consulting used. Also such forms
must always be adapted to your own cover concept
and the personal way of working
be adjusted.
This opportunity can also be used to
The issue arises when the mediator
as agent to its product providers (also in
the areas of occupational pensions/
time value account),
but as a broker towards the customers
occurs: Whether then the own VSH insurer
is even performing safely? Or
then possibly the admission stands on
the game?
Another disadvantage is that
the intermediary in the liability process or
in the event of alleged loss
no evidence of the content, process and
scope of its activities.
This makes it more difficult for your own lawyer or
the VSH insurer the
Defense of Unfounded Damages. With this
it can lead to unnecessary settlement payments
come, and the mediator
collects “negative points through regulated
Prior damage.” As a result
a VSH contract reorganization is pending –
specifically, a termination of the insurer
take place: The intermediary is then offered,
…for ten or twenty times the amount…
Premium amount a contract extension
could get.

Experience from other
Occupational groups are available

This then in fact often becomes a professional ban
and withdrawal of approval
can lead. Such experiences
lie from other professions
with statutory VSH insurance obligation
for decades already.
It is an option of the intermediaries that
own liability situation through a bundle of measures
to optimize. The vote
of one’s own forms
(brokerage agreement, waiver of consultation, documentation
etc.) with the personal
VSH conditions thus becomes existential
Task of the present.

Dr. Johannes Fiala
is a lawyer and certified financial and
Investment adviser in Munich

(versicherungsmagazin 6/2007, 58)

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About the author

Dr. Johannes Fiala Dr. Johannes Fiala

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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