An article from the series “Vermittlerrecht praktisch” of the DHBW Heidenheim:
The OLG Celle (judgment of 10.05.2012, ref. 8 U 213/11) ruled:
“If a policyholder who has changed his homeowners’ insurer cannot prove, within the meaning of Code of Civil Procedure section 286, to which
time a tap water damage has occurred, so that it cannot be clarified which of the insurers is liable, this
Ambiguity at the expense of the policyholder. The policyholder’s shortage of evidence cannot be established either procedurally or substantively.
be overcome.”
Already the advice of the (industrial) insurance broker, first of all only to call in an insurance consultant or private appraiser, is often not followed.
be defective in breach of duty.
The risk of dealing with the claims process yourself as a broker will be well-intentioned as an expensive service and customer assistance, but can be
pose a considerable liability risk due to the lack of legal and civil procedural knowledge in the preservation of evidence.
In the event of urgency, any policyholder may, prior to the actual litigation, enter into an independent
Request evidence procedure.
The subject of proof would be, for example, to establish when damage occurred, so that in the end either the former or the current
insurers would be obliged to pay. However, in order for both insurers to be bound by the result of the evidence at a later date, they must also be provided with the
Dispute to be explained.
The insurance broker or intermediary will also have to ensure that, in the event of a change of cover, the new insurer will be responsible for the insurance after its
The policy also provides cover if the time at which the loss occurred cannot (or can no longer) be ascertained and only
the claim is reported during the contract period of the subsequent insurer.
by Dr. Johannes Fiala
by courtesy of
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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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