*by Johannes Fiala, Lawyer (Munich), Mediator (Univ.), MBA Financial Services (Univ.Wales), MM (Univ.), Certified Financial and Investment Advisor (A.F.A.), EC Expert (C.I.F.E.), Lecturer (Univ. of Cooperative Education), Banker (www.fiala.de)
A lawyer wins his case and telegraphs to his client, “Justice has prevailed!” The client telegraphs back, “Appeal at once!”
The Federal Court of Justice (BGH) once again ruled in its judgment of 5 July 2006 (Case No. IV ZR 105/05) that the interpretation of clauses in insurance conditions “depends on the understanding of the average policyholder without specialist knowledge of insurance law”.
Task for legal departments of insurers: Time and again, the BGH has expressed how kindly it rules in favour of the insured when interpreting insurance conditions. As the BGH emphasised, this has developed into settled case law. It will probably remain the secret of many an insurer why no consequences were drawn from this. In addition still another current legal example:
Also some “corporate client information” sometimes reads as if the sales department of the insurer is allowed to reinvent civil law: Wasn’t it recently stated in ?Pfefferminzia? that when advising employees on occupational pension schemes, the agents merely act as agents of the insurer in the interest of acquisition? According to the prevailing opinion, this cannot be correct, because in occupational pension schemes no employee later becomes a customer of the insurer, because only employers can become policyholders in occupational pension schemes. Therefore, in the case of employee counselling by agents of the insurer, regularly only an activity as vicarious agent of the employer comes into question. Are such legal errors avoidable ? Fire damage with household contents insurance: The Federal Court of Justice (BGH) had to decide on a case in which the insurer had given proper instructions in accordance with § 12 III VVG and had set a time limit for legal action. However, under the terms of the household contents insurance policy (VHB 98), the customer had been unilaterally entitled to demand that the insurer carry out expert proceedings.
This procedure can concern both the amount of the damage and the factual requirements for the cause of action. This would also have made it possible to check whether the insurer’s refusal was justified “because the damage was caused by gross negligence”.
No effective time limit for bringing an action according to § 12 III VVG: The Federal Court of Justice has now clarified that setting a time limit for the policyholder to bring an action within a period of 6 months is only possible if “only the judicial assertion can be considered”.
Therefore, as long as the expert procedure is still possible according to the interpretation of the insurance conditions, the insurer cannot release himself from his obligation to perform by setting a deadline according to § 12 III VVG.
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About the author
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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