The OLG Celle (judgement of 10.05.2012, file no. 8 U 213/11) ruled: “If a policyholder who has changed his residential building insurer cannot prove in the sense of § 286 ZPO at which time a tap water damage occurred, so that it cannot be clarified which of the insurers is liable, this ambiguity is at the expense of the policyholder. The policyholder’s evidentiary shortcoming cannot be overcome either procedurally or substantively.”
Already the advice of the (industrial) insurance broker to call in only an insurance consultant or private appraiser at first will often be erroneous in breach of duty. The risk of dealing with claims settlement yourself as a broker will be well-intentioned as an expensive service and customer assistance, but can mean a significant liability risk due to a lack of legal and civil procedure knowledge in the preservation of evidence.
In case of urgency, any policyholder may request independent evidence proceedings with one or both insurers prior to the actual litigation. The subject of proof would be, for example, the determination of when a loss occurred, so that in the end either the former or the current insurer would be obliged to pay. However, in order for both insurers to be bound by the evidence later, the dispute must also be explained to them.
The insurance broker or intermediary will also have to ensure that, in the event of a change of cover, the new insurer will also pay benefits in accordance with its terms and conditions if the time of occurrence of the loss cannot (or can no longer) be determined and the loss is merely reported during the term of the contract with the subsequent insurer.
by Dr. Johannes Fiala
by courtesy of
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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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