If the insurance company has acknowledged a claim but has not settled it over a long period of time, it cannot subsequently invoke an alleged limitation period for its claims. This was decided by the Oldenburg Higher Regional Court. In the following article, our experts, lawyer Johannes Fiala and expert Peter A. Schramm, explain what this ruling means in plain language for insurance customers and what they have to consider in the event of a claim.
Statute of limitations regularly after three years at the end of the year
The Higher Regional Court (OLG) of Oldenburg has decided in a recently announced judgement (dated 19.12.2013, Az. 1 U 67/13) that an insurer (VR) cannot invoke the statute of limitations after years if it had previously given a so-called qualified acknowledgement with regard to the long-term claims.
The statute of limitations is suspended as long as the policyholder (UN) and the insurer correspond regarding the settlement of claims. As long as the communication is running, the clock for the statute of limitations is not running. In the case in question, the insurer had also already declared that it would recognise the material and non-material damage, although, according to the insurer, “this recognition has the effect of a declaratory judgment”. From a legal point of view, this is not just a simple recognition, but a so-called qualified recognition. After the insurer wanted to refuse its benefits after 13 years with reference to the statute of limitations, the customer’s action for a declaratory judgment was therefore successful in court simply because of this qualified acknowledgement.
Decisive content of the acknowledgement
Policyholders who find themselves in a similar situation should learn their lessons from this. Thus, in the event of a claim, the customer should under no circumstances be satisfied with a simple acknowledgement by the insurance company. In addition, the content should not be limited to the insured benefit. Otherwise, cost increases and inflation would put you in danger of the service being increasingly devalued. If it is not a dispute with your own insurance company, but with another person’s, the person actually liable should also be held liable in any case. The insured person’s liability may be unlimited. The insurer’s commitment to the agreed benefit with the policyholder is therefore often not equivalent.
Moreover, the insurer could also become insolvent. Although provisions must be made for future losses, inflation must not be taken into account for tax purposes. And the discount rate that would have to be earned on the provisions also leads to deficits in the case of low interest rates. In view of the high risks often assumed by property insurers, insolvency is even more likely than with health or life insurers – and there is no catch-all solution of the kind found there.
the need for acknowledgement by the injuring party and his insurer
In order to prevent such risks, the insurer should be required to provide an unlimited obligation, as in the case of a declaratory judgment against the injuring party itself, not only up to the sum insured. If the latter refuses, one should demand such an obligation from the injuring party himself, if only because of the risk of insolvency. Here the threat of a declaratory judgment can certainly have an effect.
The safest way to do this would be if the acknowledgement is made in notarial form and, in appropriate cases, at best with submission to execution, thus reversing the risk of litigation. With the acknowledgement, the limitation period begins to run again.
Determination of damages, including permanent and consequential damages
For example, in the case of fire damage, occupational disability, water damage, private health insurance and liability claims, insurance brokers and consultants sometimes try to settle the claims of affected policyholders. While some brokers see this as a free service, the fee consultant may charge x times the usual fees. Time and again, missed deadlines lead to the loss of legal claims, or to the loss of evidence due to the passage of time. This is the case, for example, if the insurer releases the place of loss according to his own findings. But be careful: Such a release must under no circumstances be automatically evaluated as an acknowledgement of the damage. Neither the more or less accurate report of a claims adjuster of the insurer nor the private damage report will really help the policyholder in the best possible way without the involvement of a court. It would be more advisable here to have an independent judicial procedure of taking evidence before the evidence is lost, e.g. through repair.
Injured parties often want a high severance payment, while the insurer only wants to pay a pension and future obligations. It is precisely for this purpose that the demand for qualified acknowledgement is suitable for building up considerable pressure on the insurer and its policyholder with regard to a severance payment provision. The exact wording is important here, because, for example, “the statute of limitations” cannot be waived because this option is indispensably laid down by law. It is conceivable, however, to waive the raising of this objection.
Acknowledgement on the merits
Insofar as a causal damage – possibly only in the future – cannot yet be quantified, an acknowledgement is possible on the merits. Especially after accidents, it is important to have a medical examination to see whether the case has healed before settling with an insurer out of court. Otherwise, you will have to bear the later costs yourself, for example those of the social insurance agency or your own private health insurance, for example for rehabilitation or follow-up treatment, because according to the law or insurance conditions, you cannot cut off the possibilities of recourse by waiving them yourself. With a bit of luck, the insurance broker or consultant who is always trying to do his best will then have to take responsibility.
Risk of recourse with insurance brokers and insurance consultants
The fear of mistakes in the settlement of claims is apparently quite common among insurance consultants and brokers, so that they like to use freelance lawyers at their own expense. The latter come into collision at the latest when they then have themselves appointed and mandated by the policyholder with a power of attorney because they want to serve two masters at the same time. In case of doubt, the contracts are thus null and void and there is then no longer a claim to remuneration.
Some commercial and industrial brokers came up with the idea of selling their claims to insurance consultants, similar to a tipster. As soon as the insurance consultant then pays the tip commission, the insurance agent or broker is a kick-back, which he would have to settle and hand over to the customer in full without being asked, §§ 675, 667 BGB.
In terms of content, the notarial acknowledgement of the insurance should also include the fact that this is a substitute for a declaratory judgment. Of course, it should also be noted here that the insurer cannot later rely on other objections that come to his mind at some point in time on the basis of later findings.
by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm
published on www.arzt-wirtschaft.de on 27.12.2015
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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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