There is known knowledge. These are things that we know we know. There is known ignorance. That is, there are things we know we don’t know. But there is also unknown unknowing. These are things we don’t know we don’t know.? (Donald Rumsfeld)
Risks of providing advice on cover for loss of capacity to work: For the insurance broker, advising on and arranging insurance cover for loss of capacity to work is one of the tasks that is particularly fraught with liability. Offering cover by class of insurance, rather than by product, protects the intermediary from liability for a gap in the offer and failure to advise. For here the intermediary is threatened with liability, so that he would have to pay ?the uninsured annuity? to the customer himself later as compensation for damages.
Every third occupational disability case before the courts? This also includes the case where, for example, the occupational disability (DI) insurance does not (yet) pay ? but the daily sickness allowance insurance does not (no longer) pay. Especially when two insurers are involved, the risk of a de facto gap in coverage is considerable. It concerns as it were a ?total loss and plaintiff risk? of the policyholder (VN). The possibility to sell a legal protection insurance (with another company!) does not completely eliminate these risks.
No obligation of the daily sickness allowance insurance to pay benefits in the event of occupational disability: However, the reverse can also occur. The daily sickness allowance (DI) insurance already provides benefits, and the occupational disability benefits of another insurer are added later. In this case, the OLG Karlruhe (Case No. 12 U 89/06) awarded the KT insurer a contractual claim for repayment in accordance with § 15 I a of the standard terms and conditions (MB/KT 94) in its judgement of 6 July 2006. According to the case law of the Federal Court of Justice (BGH), a plea of deprivation pursuant to § 818 III of the German Civil Code (BGB) by the insured party is excluded. This is because the contractual claim for restitution pursuant to § 11 MB/KT completely displaces the right of unjust enrichment, §§ 812 et seq. BGB.
This is intended to prevent ?multiple insurance? (via KT and BU) through the additional receipt of “benefits from an insurance relationship of a private or social law nature”: The decisive factor is not the existence of an occupational disability, but the simple receipt of an occupational disability pension, even if only “for a limited period” or “as a gesture of goodwill” on the part of the occupational disability insurer or “without recognition of a legal obligation”.
Risks in the settlement of claims: The insurance broker may settle claims, i.e. like a lawyer he may only represent the insured person out of court vis-à-vis the insurer. However, there are numerous pitfalls, and mistakes in the advice given when taking out the insurance can also come to light.
The entitlement to KT payment ends when the pension is drawn: the existence of a BU or reduction in earning capacity with a certain percentage is not important. The simple payment of a disability benefit, even as a goodwill gesture or a temporary disability benefit, is sufficient to render the KT claim null and void. This also applies if it is only a “fictitious” case of occupational disability. BU case is concerned. The amount of the occupational disability benefit is irrelevant. If this is below the KT payment, this can also reveal an advisory error on the part of the intermediary. It is typical that the intermediary has overlooked the fact that such insurance benefits are also taxable. If the pension from a private contract or by the social insurer is, as is common in practice, often only approved retroactively after months, the obligation to pay benefits (at the latest three months after pension approval) of the KT insurer also ends.
Such delays alone, with the resulting income gaps of the insured person, represent a typical consulting error, which can also be found in many a financial plan.
Unlawful MB/KT: Therefore, no automatic end of KT contract: If an occupational disability benefit is due, the entry age and the risk in the person of the insured person have changed. It would be unreasonably disadvantageous to him if the KT insurance contract were to end automatically, as the Federal Court of Justice (BGH) stated in two judgments as early as 1992, § 307 I, II No.2 BGB.
The only exceptions are the end of the KT contract due to the drawing of an old-age pension or the reaching of the contractual age limit (e.g. 65th birthday). Just as a previous case of occupational disability is only to be regarded as “temporary”, the case of a move abroad will not automatically lead to the end of the KT contract.
By way of supplementary interpretation of the contract, the KT insurer (in the BU case) is thus released from the obligation to pay benefits (only temporarily), §§ 133, 157 BGB. A (final) termination of the contract would run counter to the social protection purpose of the KT insurance.
Training liability of distributors / insurers: gap in advice when moving abroad Anyone who wants to spend his retirement in Brazil, for example, will find that ?his? statutory health insurance (GKV) simply deregisters him as soon as there is no longer a domicile in Germany. If there is a residence in Germany, the worldwide income of ?the emigrant? is permanently subject to German tax law, §§ 8 AO, 1 EStG.
Many insured persons in private health insurance (PKV) suffer a similar fate, because only a few tariffs permit a permanent abandonment of residence in Germany. As a result, not only the entitlement to KT benefits is then regularly (?temporarily?) lost, but also to the other claims contractually agreed with the insurer.
Here, too, a not insignificant liability case may lie dormant for the broker. As far as trainings on the MB/KT here incomplete ? So you’re wrong? If the insurers or distributors who trained the insured were not liable, the intermediary will attempt to take recourse against them in the event of liability.
Liability trap due to the option of a qualifying insurance: The option of a qualifying insurance offers the policyholder the option of receiving further KT benefits for himself in the event of renewed incapacity for work. The conversion into a temporarily dormant contract has the advantage that the original age of entry into the tariff is retained and no further health check takes place. The catch here is that the KT contract can end “automatically” if the insured person does not exercise his right to choose a qualifying insurance within ? as a rule – two months. This option in the KT tariff means, according to the BGH ruling from 1992, an appropriate balance of interests (sufficiently protecting the insured person).
If the BU is only determined later (retroactively), this period may have elapsed ! If an occupational disability is later recognised as non-existent, the insured person has lost his KT benefits if he has already exercised his right to choose a prospective insurance !
Either litigation risk or use of legal conditions: The policyholder’s litigation risk lies in the fact that he would then first have to assert in court that the limitation of the right to choose a qualifying insurance would also be an “unreasonable disadvantage”. The court would then, for example, have to allow the period to commence by supplementary interpretation of the contract only when the policyholder has certain knowledge as to whether a case of occupational disability exists.
However, the policyholder can also link the application for a conversion of the KT insurance into a qualifying insurance with a legal condition, § 158 BGB: A suitable condition would be that the application is made in the event of occupational disability.
The same problem arises in the event that the BU case later ceases to exist. This can lead to the revival of the contractual KT benefit claims. In any case, it would be safer to notify the insurer, combined with an application for KT benefits, because the insurer is exempt from paying benefits during the qualifying phase. Here, too, the use of legal conditions can help the UN.
Whether the risk of a notification omitted due to ignorance or through no fault of the policyholder is to be borne by the policyholder has yet to be decided by the higher court.
Intermediary strategy for dis-liability: As a sales manager once said so beautifully ‘Insurance is a product for people who need it ? but usually cannot afford it comprehensively enough’. From the point of view of the intermediary, it can make sense to present and offer the customer not only health insurance and occupational disability insurance, but also business interruption or liquidation insurance, as well as dread disease and accident insurance cover. The customer must then decide (after verifiable clarification !) what he can and wants to afford. In order to find gaps in the own consultation or documentation, a view into the file is usually sufficient: This can be cause enough ?to pick up the money, which lies on the road? ? you just have to bend down a little, and be it to reach for the file, and then to the phone for an appointment with the customer. After all, this would be a fine alternative instead of hopefully believing that gaps in documentation and/or advice can be safely sat out.
To the judgement of the OLG Karlsruhe:click here
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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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