Trade, economy, finance, banks & insurances
Press release by: Law Firm Dr. Johannes Fiala
(openPR) – insurance companies owe half of the “ungezillmerten” fund credit with fund-bound capital life insurances – many humans are too well educated, in order to speak with full mouth; but they have no doubts to do this with empty head. (Orson Welles) Billions in additional claims for life insurance policyholders The Federal Court of Justice (BGH) decided in its new ruling of 26.09.2007 (Case No. IV ZR 321/05) that policyholders may be entitled to a minimum surrender value after termination – also in the case of unit-linked life insurance. Experts estimate that insurance customers are entitled to several billion euros from terminated unit-linked and other endowment life insurance policies. Minimum surrender value for policyholders The Federal Court of Justice (BGH) points out that contract clauses on the offsetting of acquisition costs may also be invalid in the case of unit-linked contracts due to lack of transparency. In the event of premature termination, the insurance customer is entitled to a minimum surrender value from the insurer. Legal grounds are non-transparent or invalid clauses in the insurance conditions, in the contract in question in §§ 12 III and 24 I GCI. Prohibition of zillmerisation The insurance undertakings should have informed the customers transparently about the economic disadvantages of a premature termination already “at the time of the conclusion of the contract”. The clause on the offsetting of the acquisition costs (including the commission for the brokerage) by way of Zillmerisation is also non-transparent and thus ineffective if the insurance customer “cannot see the extent of the disadvantage associated with the offsetting”. Deficit in the legal department at the insurer? The BGH refers to earlier decisions, according to which the “supplementation of the contract by clauses with the same content” made by the insurer, if applicable, is also invalid. The insurer had apparently assumed itself that its old clauses were ineffective – the replaced new clauses, however, had not even been validly concluded in the trustee procedure according to the ruling of the BGH. The insurers previously did not consider the previous BGH rulings of 12.10.2004 to be relevant for unit-linked life insurance, because they related the minimum surrender value to the unzillmerised actuarial reserve. In unit-linked life insurance, however, there is no such un-committed actuarial reserve, only a fund account. However, the court now decided in a clarifying manner that in the case of unit-linked life insurance the “unzillmerised fund assets” instead of the unzillmerised actuarial reserve represented the starting point for the customer’s claim for subsequent payment. Cancellation deductions not directly affected The ruling does not mention cancellation deductions – these were originally only invalid because their calculation was based on the “current value”, a term which the BGH also considered to be non-transparent. However, there is also no non-transparent current value in the case of unit-linked contracts, as the fund account takes its place. So if cancellation deductions are provided for at all in unit-linked contracts, these at least cannot be challenged with the preceding BGH rulings. Further liability approaches at the expense of insurers and intermediaries Only a fraction of endowment life insurance policies are “held out” until expiry – the cause is often massive errors in advice by intermediaries. The Federal Court of Justice (BGH) also commented on this this year (ruling of 14.06.2007): Agents or insurers are liable if the brokered life insurance does not meet the needs of the customer, for example, does not meet his financial capacity. In this respect, claims for damages from terminated life insurance policies of the last 30 years are addressed. Ambiguous clauses open to interpretation The ambiguity of contractual clauses (which are not completely opaque) results in the interpretation which is more favourable to the policyholder. In its judgement of 18 August 2006, the Local Court of Heidelberg (AZ: 30 C 122/06) ruled against MLP AG that around 90 % of the acquisition costs in certain contracts must be reimbursed. In the opinion of the court, the insurer had not made it sufficiently clear in its clauses that the acquisition costs were incurred in each of the first 10 years and was therefore only allowed to charge the costs calculated annually for the first 10 years in total. Case-by-case examination necessary Beyond the aforementioned BGH rulings, further claims of the insured persons may arise for quite different reasons. Often it is only an actuarial appraisal that reveals how the insurer has actually calculated – on the basis of the clauses it has used or even without any such clauses at all. Only in this way do the disadvantages become discernible at all and accessible to further legal review. Insurers usually do not offer this transparency for good reasons.
Law Firm Dr. Johannes Fiala De-La-Paz-Strasse 37, 80639 Munich Tel. 089 1790900 www.fiala.de Press: Ms. Ingeborg Weiler email@example.com
*by Dr. Johannes Fiala, Attorney at Law (Munich), MBA Financial Services (Univ.), Certified Financial and Investment Advisor (A.F.A.), Lecturer for Civil and Insurance Law (BA-Heidenheim, Univ. of Cooperative Education), Bank-Kfm.(www.fiala.de)
Dipl.-Math. Peter A. Schramm, expert for actuarial mathematics (Diethardt), actuary DAV, publicly appointed and sworn by the IHK Frankfurt am Main for actuarial mathematics in private health insurance (www.pkv-gutachter.de).
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About the author
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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