Explosive liability risks for employers – reduced benefits for employees!
“The pension is safe” proclaims the politicians. This was followed by an appeal to the citizens to build up a second pillar for old age, the occupational pension scheme (bAV) – in particular through deferred compensation. Clever sellers, especially of insurance products, seized the opportunity. Employers were sold masses of contracts worth billions of euros, which often have no surrender value at all due to high acquisition costs in the first few years. Acquisition and administrative costs were financed from staff salaries. What begins with a small salary conversion with, for example, a missing 2000 euros, ends in old age with a deficit of up to more than 10 times this amount. With a little “bad luck” the employer is liable for this difference. Calculating with uninformed customers In the magazine Versicherungswirtschaft, a departmental director of life insurance – himself active in the corporate insurance business – puts it succinctly: employers will rarely sue for misadvice because “the facts are sometimes so complicated that even tax and pension consultants will hardly discover them.” Insurers are protected by “intransparency as well as the regularly long periods of time until liability facts are discovered and clarified in court. … – Against this background, it is fundamentally difficult to prove misadvice”. And damage assessment is “not easy and dependent on future developments.” Secure employer liability – the pension trap The core problem economically is that almost every employer was not informed about the acquisition costs. For the employee, with an average length of service with the company, there is usually more “net” left over if he had paid tax on the money and put it in his savings account without the occupational pension model. Support from actuaries as experts The much vaunted “independent” advice turns out to be a liability trap for employers in over 95% of cases on closer examination. High administration and acquisition costs later burden the balance sheet, even leading to insolvency. As a rule, only an independent actuary will be able to show the employer which economic liability risks exist – the complex facts can be made transparent in this way and an equality of arms can be established with the product providers and intermediaries who are only supposedly protected by lack of transparency. Money-back from the sponsors of company pension schemes The insurance intermediary usually takes personal trust – he cannot hide behind an intermediary limited company either: he is personally liable. But the insurer or a provident fund is also liable to the employer. A need for action arises above all because the employer must be liable to his employees for 30 years (limitation period) – but incidentally after 10 years at the latest the employer’s recourse against the intermediary may be time-barred. However, actuaries – who are familiar with the calculation of such long-running contracts with different benefit components – can still predict the developing loss in good time. It is not uncommon for an actuary’s opinion and a lawyer’s letter to be sufficient to obtain complete reversal. It is reassuring for the employer that the costs of the actuary or expert (without whom transparency and damage assessment are usually not possible) and the remuneration of the lawyer must then also be borne by the occupational pension provider: The employer is also liable for its intermediaries, as they are considered to be its vicarious agents. Success through competence Daily practice shows that an actuarial expert opinion and a lawyer’s letter are usually sufficient for the employer to be compensated for damages. There are already numerous judgements – hardly any insurer wants to risk another one. In the end, the insurer is confronted with a transparency that it does not want. As long as the number of lawsuits – as the industry notes – remains within limits, it therefore prefers to pay out of court for business reasons and to avoid new relevant judgments. Employers have quite good chances above all because the suspicion of fraud by insurers and intermediaries in the objective-criminal sense regularly arises with the employer as soon as he has been informed by actuary and lawyer about the existential economic consequences of his company pension models, which are often advertised as liability-proof. If intermediaries have to be told that their misadvice is unlikely to lead to liability suits because they are already protected by the insurer through non-transparency with regard to the assessment of claims, one can guess the economic accumulation risk behind these contracts. For the product provider and intermediary, the difference between a theoretical risk and a risk that materialises then lies only in the transparency to be created.
Dr. Johannes Fiala Law Office, MBA firstname.lastname@example.org
(floors&walls 12.2007, 61)
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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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