The OLG Koblenz (judgement of 28.02.2018, file no. 4 W 79/18) decided on the liability for damages of a professional caregiver after he or she had terminated a private health insurance (PKV) together with a supplementary nursing care insurance (PV) and a short time later the benefit claim occurred.
Liability in the event of a foreseeable claim despite lack of funds for ongoing premium payment
The court held that in the event of a foreseeable benefit claim with the associated exemption from contributions, termination of the (supplementary) long-term care insurance is prohibited, despite the existing basic protection in the statutory compulsory long-term care insurance (PPV). However, a possible violation of the obligation to notify when concluding private health insurance and PPAs could justify termination – especially if no benefits are expected as a result.
Insurance with premium waiver in the event of a claim
These are firstly benefits from insurance policies that become premium-free in the event of a claim, such as death insurance, occupational disability pension insurance and, depending on the degree of care, in some cases wholly or partially (and depending on the AVB not) private daily allowance insurance or private nursing pension insurance.
Accident insurances are mentioned in the judgement – however, the soon occurrence of an accident is probably not foreseeable, unless the man already knows when he will push his wife down the steep stairs; or in that case, where the man said to visitors “The dose makes the poison” and his wife in the background shouted “My name is Doris, not Dosis”, from the poison kitchen.
Sometimes you can help yourself by proving that the insured event occurred before the cancellation became effective. With some bad luck, however, the insurer (BoD) then proves that he had already joined the company before the start of the insurance.
In addition to exemption from contributions in the event of an insured event, it will probably also be necessary to consider the case that the benefit of the daily care allowance is on balance far higher than the future contribution – without exemption.
Furthermore, the termination of a life insurance policy can be untimely, i.e. shortly before expiry with significant discounts. In this case, too, only a prior expert assessment can help.
Without a private expert opinion, it is hardly possible to make a decision that is secure against liability
Of course, hardly any advisor himself will be able to see from the insurance policy and terms and conditions what is insured there and under what conditions, or to estimate the effects of termination versus continuation.
Furthermore, the alternatives must also be considered if the contribution is difficult to raise: For example, exemption from contributions, a deferral, policy loans or financing from accumulated surpluses. A reduction of the daily nursing allowance to the same amount only for serious cases of nursing care would also be possible.
Anyone can be a caregiver – and this means that almost every caregiver is confronted with the fact that they cannot see that a daily care allowance was insured, let alone the contribution exemption that is also insured. A simpler case, however, is that in which the value of an insurance policy for funeral provisions is higher than the value of the bona fide assets (currently EUR 5,000) (SG Münster, judgement of 28 June 2018, file no. S 11 SO 176/16). Then the termination is reasonable, but not always effective.
Supplementary coverage through insurers and social welfare institutions
For additional security, it is also recommended that the BoD should always be consulted with regard to the payment of premiums, with its liability, § 6 of the Insurance Contract Act (VVG).
Social welfare institutions, including the social welfare office, are obliged to provide information, counselling and advice, §§ 13 ff. SGB I. Violation of this rule may result in claims for (re)production under social law and official liability. For example, when the person concerned “only” receives social assistance instead of being encouraged to apply for a higher disability pension from the DRV. Such references or information must be “appropriate, i.e. complete, correct and unambiguous” (BGH III ZR 466/16).
Wake-up call of the BGH for civil servants (also addressed by caretakers)
“Furthermore, it is consistent with the Senate’s consistent case-law that special situations and circumstances can give rise to additional (welfare) duties for the civil servant, for example the duty to instruct an applicant about the measures necessary to achieve his or her objectives or to act in a helping capacity in another way if the civil servant recognises or must recognise that the person concerned is not able to assess his or her situation correctly in fact or in law. In particular, the official must not “see with his eyes” that the citizen making or presenting an application suffers damage which the official is in a position to avoid by giving a brief note, a brief instruction in a few words or a corresponding explanation of the factual and legal situation. … These additional obligations to inform and instruct arise from the principle that the civil servant should not only be an executor of the state’s will, not only a servant of the state, but at the same time “helper of the citizen”, and concern case constellations in which the necessary help or other necessary behaviour is imposed by the situation”.
Accordingly, there is an obligation to point out design possibilities, advantages and disadvantages.
- 14 S.1 SGB I is to be understood in such a way that everyone “is entitled to advice on their rights and obligations under the Social Security Code, not only those service providers against whom rights are to be asserted or obligations fulfilled are obliged to provide advice …”.
Admittedly, a guardian’s liability according to § 1833 BGB would have priority in the sense of § 839 I 2 BGB (BGH loc. cit.).
Error by alleged legend of the judicial officer “to leave everything as it is”
Of course, it was the courts that were of the opinion in individual cases regarding asset management, investments and insurance coverage that the guardian or curator of the estate should leave everything as it is. It has already proven to be a grave error to follow this view (OLG Hamm, JR 1978, 201 = DAVorm 1978, 221), because if the person being cared for has no personal liability insurance, for example, but represents a “significantly increased risk”, it will be obvious to take out appropriate insurance to avoid personal liability towards third parties (who could be harmed by the person being cared for).
At best, the behaviour of the advisor was even more deliberate in the case of the incapable Professor P., whose hobby consisted of visiting auctions in order to bid: If the respective business was economically very favourable, the advisor approved it – otherwise not.
Benefits from the insurer instead of compensation from the carer
If more than 3,000 euros are disposed of by a termination, this is invalid, § 1813 BGB (OLG Nuremberg, judgement of 24.03.2016, Az. 8 U 1092/15) – unless a counter guardian or the guardianship court had (previously) approved the termination. The decisive factor is not that there is no surrender value (RKW) when a private health insurance policy is terminated – or that the RKW’s life insurance policy is below the 3,000 euros mentioned above. Rather, it depends on the order, i.e. whether a right is transferred, encumbered, revoked or the content is changed, § 1812 BGB (BGH, judgement of 05.11.2009, Az. III ZR 6/09). Consequently, the value of a benefit to be obtained in the event of an insured event.
Ineffective change of the subscription right by supervisor
This also applies to changes and revocation of a subscription right (BR) in the LV. The BoD’s value proposition is decisive. Even with the approval of the guardianship court, the change in the subscription right would be null and void if this is equivalent to a gift to the new beneficiary, § 1908 I II BGB in conjunction with 1804 BGB – this applies all the more if the guardian benefits himself/herself, §§ 1795, 181 BGB (LG Düsseldorf, judgment of 15.11.2012, Az. 11 O 259/12). The increase in the assets of the person being cared for by revoking the BR can also become problematic – for example, in the case of a last will and testament, for example to secure the subscription right as a legacy.
The Higher Regional Court of Koblenz described the amount of lost board services as more than EUR 18 thousand – which makes it necessary to examine the invalidity of the terminations of the private health insurance and the public health insurance anyway. Objections would have to be considered by courts of their own motion – if they are recognised.
by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm
by courtesy of
www.experten.de (published on February 25, 2019)
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Dr. Johannes FialaPhD, MBA, MM
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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