Claims to daily sickness benefits despite partial retirement and also without loss of income

– Judgment of the Regional Court (LG) Nuremberg-Fürth confirms claims even without monetary need –


Also with the conclusion of a sickness daily benefit (KT) insurance as so-called sum insurance, insurers try in many concrete cases to refer to the fact that the insurance customer had no damage by the inability to work, and therefore no requirement for achievement would possess.


Benefit reductions of up to more than 50%: Nuremberg-Fürth Regional Court puts the insurer in its place

A ruling by the Nuremberg-Fürth Regional Court of 28 July 2011 (Case No.: 11 S 554/11) shows the consequences of structuring the KT insurance as an aggregate insurance policy – and not as a damage insurance policy: A concrete damage does not even have to have occurred. The daily sickness allowance agreed as a sum must be paid by the insurer if necessary even if no loss of income occurs at all as a result of the inability to work, even if more is earned than before, and there is also no prohibition of enrichment.

In the specific case, no damage was found to have occurred because there was no longer any obligation to perform work during the release phase in the case of partial retirement with continued payment of salary:

Although the daily sickness allowance insurance ends with the end of employment – i.e. retirement – this is not the case with the only actual cessation of activity during the release phase of partial retirement, and the specifically agreed conditions do not contain a corresponding provision.


Only expressly regulated reasons can lead to the discontinuation of the obligation to pay benefits

Of interest to those affected is the court’s finding that a user of general terms and conditions (GTC) who makes contractual provisions on (certain) facts relating to the cessation or change of the basis of the contract can no longer invoke other facts relating to the cessation or change of the basis of the contract.

Insurers would have had it in their power to amend the General Insurance Conditions (AVB/KT) due to “changes in the circumstances in the health care system”, namely on the occasion of the statutory introduction of partial retirement. Only some insurers have a clause on this.


Often unjustified denial of service

If a business continues to run so well without the self-employed person with the employees alone, that it even made more profit than during his incapacity for work, this also often does not mean an exclusion of benefits. The argument that nothing should be paid because of a lack of need due to damage that has not occurred is not legally valid. This seems to be a common attempt to avoid performance to this day.


LG Nürnberg-Fürth: No loss of earnings required

Although the amount of the benefits is based on the lost earnings, it is not linked to them. It is not the concrete loss of earnings that arises in the event of illness, but the abstract need that is assumed to arise in the event of incapacity for work that is decisive in the daily sickness allowance insurance as a sum insurance. It was therefore irrelevant whether the policyholder had actually suffered a loss of earnings as a result of his inability to work. The prohibition of enrichment under insurance law only applies to damage insurance, but not to sum insurance.


Disability or occupational disability?

Incapacity for work due to illness is described as an irregular state of health which is temporary in nature. Then the daily sickness allowance insurance takes effect and (still) no occupational disability insurance (BU). Also in the case of the self-employed, the health insurer cannot demand a reorganisation (e.g. spatial, organisational or personnel, appointment of an office manager) in the daily sickness benefit insurance, in contrast to many BU insurers, because it depends on the activity in its concrete form. And also the BU insurance is sum and not damage insurance, so that it is harmless, if for example a civil servant, tax adviser or personnel department manager of a people bank earns the double in the future as an insurance broker, because as a broker one does not have the same life position as before. And the self-employed person who is incapable of working will also continue to receive his full occupational disability pension if his business yields more for him after a substitute has been appointed than before.


Alternatives for insurers

Insurers who do not like this result can either limit their obligation to pay by means of appropriate contractual clauses. Alternatively, the insurer may choose to insure temporary or permanent disability (i.e. occupational disability) in accordance with the principles of indemnity insurance instead of the principles of aggregate insurance. This would not only be more in line with demand, but also cheaper and would avoid many disputes. In addition, insurance for occupational disability could even be offered by health and non-life insurance companies, not just life insurers. It would then also not be subject to the statutory provisions of the Insurance Contract Act specifically prescribed for occupational disability insurance. Thus, in the case of occupational disability, the insurer could continuously re-examine the obligation to pay benefits, just as in the case of daily sickness allowance insurance, and would not be dependent on the narrow limits of the so-called review procedure after recognition of occupational disability.


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


by courtesy of (Issue 3, March 2014)



(Der BauUnternehmer, February 2014 under the headline: Claims for daily sickness benefits despite partial retirement)

and (Computers in the Skilled Crafts, Issue 3-4, 2014 under the headline: Daily sickness benefits: Claims despite partial retirement and also without loss of income).


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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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