In the event of a lack of clarification, the employee has a claim to the pension fund continuing the annuity insurance contract concluded under a group insurance contract on the original terms. This applies both in the case of a change of employer and if the employee leaving the company takes over the contract himself on leaving. This was decided by the Higher Regional Court (OLG) Celle in its current ruling (Ref.: 8 U 29/07). The lower court had ruled in favor of the pension fund.
The case The employer had taken out insurance policies with a pension fund under a group insurance contract. Due to the tense economic situation of his employer, the plaintiff employee had repeatedly asked the insurance broker about the consequences of a possible change of employer before taking out his insurance policy. The intermediary had replied that nothing would change in terms of content if the new employer continued the insurance. In particular, there would be no changes in the contribution to be paid and the benefits to be provided. A witness reported similar statements made by the intermediary during his counseling session during the same period. The mediator could not remember the conversation with the claimant due to many conversations with employees. There was no documentation either. But he admitted that when asked about the change of employer, he regularly said that the contract could be continued one-to-one with the new employer, given the same constellation. However, he only pointed out that the amount of the benefits and the premium depended on the tariff agreed in each case if he was specifically asked to do so. This information would have been necessary, however, because the employee clearly had a corresponding need for information.
Reasons for Judgment The insurer is liable for performance of the contract to the extent that the insurance agent represented the contents of the insurance policy to the policyholder prior to the conclusion of the contract. This applies in the case of false information, but also if the agent does not contradict the policyholder’s incorrect ideas and does not provide him with accurate information. The agent does not have a general duty to give unsolicited advice or instruction. However, if it is evident that the policyholder has a corresponding need for information, the insurer must do so on its own initiative. Liability also exists if it was readily apparent to the agent that the policyholder was mistaken about a material contractual point. This can then not only reshape the content of a contract, but also establish a separate contractual relationship. In this context, liability is not linked to any fault on the part of the agent. In the absence of unambiguous written documents, the employee is also not guilty of any significant contributory negligence in the case of the OLG Celle. Since the misadvice in the present case was given by an agent of the pension fund, the agent must continue the contract under the original conditions. In particular, it should be borne in mind that advice given to the employee is not usually covered by the broker’s pecuniary loss liability.
Source: Law Firm Dr. Johannes Fiala Author(s): Attorneys at Law Dr. Johannes Fiala and Thomas Keppel
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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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