The new VVG does not bring improvements in all cases
In the case of occupational disability insurance, the insurer can subsequently adjust the contract in the event of a breach of the pre-contractual duty of disclosure, to the detriment of the customer. The new VVG gives insurers a great deal of leeway here.
The renunciation of the “all or nothing principle” as a guiding principle of the new VVG is celebrated in public as an important advantage for the insurance customer. The following example is intended to illustrate that this is not always the case – even in central points of the insurers’ benefit checks: The insured person has taken out occupational disability insurance this year (age 40) up to the final age of 65. In 2012, he is so severely injured by a spinal fracture in a traffic accident caused by someone else that he is permanently unable to work. When examining the claim for benefits, the insurer establishes that the customer was grossly negligent in failing to disclose a significant risk circumstance in the application procedure (taking beta-blockers due to high blood pressure in conjunction with being overweight).
Variant 1: The insurer may withdraw from the contract if it proves that it would not have insured the risk on the basis of its acceptance guidelines had it known of the risk circumstance. However, since there is no causality with the previous illness that was not disclosed, the insurer must provide full benefits for the insured event that has already occurred (possibly up to the final age of 65).
Variant 2: However, if the insurer can prove (and this will probably be possible in many cases) that it would only have accepted the risk with difficulty if it had been aware of the risk circumstance, in this case only with the final age of 50, it can adjust the contract retroactively and is liable for the benefit case that has already occurred. for 6 years (instead of 21 years).
The insurer’s right to retroactive adjustment has not been further relativized by the legislature. It is even mandatory if the insurer would have concluded the contract even with knowledge of the circumstances. Causality does not play a role in the adjustment. This can lead to decisions that are difficult for the insured to understand. Since the insurer’s acceptance decisions with regard to pre-existing conditions are usually known neither to the customer nor to the intermediary, it is almost impossible to assess the insurer’s ability to shape the policy in such cases.
Blameless breach of duty of disclosure and slight negligence
In the following cases, the insurer may have to terminate the policy: A policyholder was aware of the risk circumstance (e.g. a one-off laboratory finding on blood values mentioned in passing by the doctor), but was – excusably – unaware of its materiality. So he thought that, for example, a previous illness or a laboratory finding was inconsequential. Therefore, he does not disclose, for example, his nicotine addiction or the slight hearing impairment or the slightly elevated cholesterol level mentioned in passing by the doctor, or he does not consider it necessary to point out to the insurer that he reduced his weight by 15 kg a year ago on the recommendation of his sports doctor.
Or he misunderstood the question because it asked about a specific disease, but the policyholder was diagnosed with a different name. If, on the other hand, the disease had finally slipped his memory, it is no longer known to him and he is therefore not required to declare it. If, on the other hand, he only fails to remember it at the first attempt and does not make sufficient efforts to remember it, he will already be guilty of slight negligence.
In supplementary occupational disability insurance (BUZ), the insurer’s right of termination and adjustment is particularly disadvantageous. Therefore, many insurers, but by no means all, completely waive this right in the event of a blameless breach of the duty of disclosure. Surprisingly, even tariffs that do not or not completely waive this right in the BUZ are awarded top ratings. Obviously easy to overlook, but no better in its consequence for the customer (and the broker), is the lack of waiver of the application of § 19 VVG in the event of a culpable breach of the duty of disclosure in the main insurance in the case of supplementary occupational disability insurance.
The waiver of application in the occupational disability insurance is of little help if the insurer does not have this restriction in the underlying main insurance – e.g. term life insurance. Term life insurance can therefore be cancelled even in the event of a culpable breach of the duty of disclosure. And – as is the nature of supplementary insurance – in this case the supplementary occupational disability insurance is also terminated as a condition, as it cannot be continued on its own. The supplementary insurance is therefore not cancelled in the event of a breach of the duty of disclosure through no fault of the policyholder, but is terminated. The consequence, however, is the same. If the termination results in a non-contributory sum remaining insured, the insured BUZ benefit is also reduced accordingly. Here, too, supplementary insurance is thus significantly devalued.
Liability trap for brokers
It proves time and again that superficial reading of terms can lead astray. If the insurer reintroduces an excluded right of cancellation through the back door, this is easy to overlook – even product ratings do not necessarily point out such liability traps. Could this be due to the fact that the interaction with the general conditions of the main insurance in such important points as the question of the applicability of § 19 VVG is not taken into account in the rating assessment of a BUZ? Even providers with the current highest BUZ product rating (Nürnberger, Allianz) only waive the application of § 19 VVG in the BUZ, but not in their general terms and conditions for term life insurance in the event of a culpable breach of the duty of disclosure. Martin Seichter (insurance broker and expert author of the BU comparison program EMRT) has prepared an overview of the effects of the provisions of §§ 19 to 22 VVG (pre-contractual breach of duty of disclosure) on the continuation of the contract and the insurer’s obligation to pay benefits, which also reflects the finer points of the possible consequences for the customer and the insurer described in this article.
by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm
published in Versicherungsvertrieb, issue 02/2008, page 30-31
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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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